Allowed

Seema v. Csk H.P.Krishi Vishwavidyalaya

Himachal Pradesh HC5 Jul 2017LPA/208/2010

Case brief

AI extract

What is this about?

The High Court allowed two Letters Patent Appeals against a Single Judge's judgment that had quashed an appointment. The Court held that a candidate who participated in the selection process could not later challenge the outcome, affirmed the Selection Committee's meritorious choice over another candidate, and set aside the lower court order.

What did the court decide?

Both LPA Nos. 208 and 297 of 2010 allowed; judgment dated 20.7.2010 set aside; interim directions vacated; pending applications disposed of.

Seema Vs Csk H.P.Krishi Vishwavidyalaya — Service and Employment | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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LPA’s No. 208 of 2010 and 297 of 2010 Decided on July 5, 2017

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--------------------------------------------------------------------------------1. LPA No. 208 of 2010 Seema …………….Appellant Versus

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CSK H.P. Krishi Vishwavidyalaya and another .Respondents

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LPA No. 297 of 2010 The CSK H.P. Krishi Vishvavidalya …………….Appellant Versus Ms. Satya Bhama and another .Respondents

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--------------------------------------------------------------------------------Coram

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Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice Hon'ble Mr. Justice Sandeep Sharma, Judge

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Whether approved for reporting? Yes.

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--------------------------------------------------------------------------------For the appellant(s) Mr. Subhash Sharma, Advocate, for the appellant in LPA No. 208 of 2010 and for respondent No.2 in LPA No. 297 of 2010.

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For the respondents Mr. Lokender Paul Thakur, Advocate, for respondent No.1 in LPA No. 208 of 2010 and for the appellant in LPA No. 297 of 2010.

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Mr. Divya Raj Singh, Advocate, for respondent No. 2 in LPA No. 208 of 2010 and for respondent No.1 in LPA No. 297 of 2010.

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Sandeep Sharma, Judge

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These Letters Patent Appeals have been instituted against judgment dated 20.7.2010 passed by a learned Single Judge of this Court in CWP(T) No. 13586 of 2008, whereby, writ petition having been filed by one Satya Bhama, came to be allowed and

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1 Whether the reporters of the local papers may be allowed to see the judgment? .

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direction was issued to the respondent-University to redo the entire selection process in accordance with law.

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2. LPA No. 208 of 2010 has been filed by one Seema, (respondent No.2 in the CWP(T) No. 13586 of 2008) and LPA No. 297 of 2010 has been filed by the respondent-University. Since both the appeals are against the same judgment, as such both are being decided by this common judgment.

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3. Briefly stated the facts, as emerge from the record are that respondent-University, vide advertisement No. 1/2005 dated 3.2.2005(Annexure A-1) invited application for filling up various posts in the respondent-University, including that of Assistant Extension Specialist (Home Science) in the pay scale of `800013500 (UGC), with minimum educational qualification for the same as M.Sc. having qualified NET from UGC/CSIR, ICAR or similar test accredited by UGC/State in the concerned discipline/subject. Satya Bhama (writ petitioner) as well as Seema participated in the selection process, however, the fact remains that the Selection Committee recommended name of Seema for appointment to the post of Assistant Extension Specialist (Home Science) and, accordingly, she was given appointment letter on 7.4.2006. Being aggrieved and dissatisfied with aforesaid selection of Seema, Satya Bhama preferred OA No. 1506 of 2006, before the Himachal Pradesh Administrative Tribunal, which subsequently came to be transferred to this Court, and registered as CWP(T) No. 13586 of 2008. Learned Single Judge, vide judgment dated

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20.7.2010, while allowing petition of Satya Bhama, quashed and set aside appointment of Seema and directed the University to redo the entire selection process, in accordance with law. In the aforesaid background, present appeals came to be filed, one by Seema and another by the University itself.

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4. Mr. Subhash Sharma, learned counsel representing the appellant in LPA No. 208 of 2010, while inviting attention of this Court to the merit list drawn by the selection committee, (available on record at page 56) stated that since his client was found to be more meritorious by the Selection Committee comprising of eight experts, there was no occasion for the learned Single Judge to set aside appointment of his client that too on the basis of bio-data made available to him during proceedings of the case. Mr. Sharma, further contended that bare perusal of merit list suggests that his client procured 32.9 marks in the selection process, whereas, Satya Bhama could only procure 28.10 marks, as such, his client rightly came to be appointed as Assistant Extension Specialist (Home Science). While referring to the aforesaid document, Mr. Sharma, contended that it is ample clear that Selection Committee was comprised of eight experts including one Professor from Department of Home Science, Extn. Education, PAU, Ludhiana. Apart from above, one member of the Selection Committee was from CCS, HAU Hisar. Learned counsel further contended that candidature of his client was considered and recommended under SC category by the Selection Committee. Mr.

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Sharma, further contended that there was no occasion for the learned Single Judge to take note of marks allegedly obtained by Satya Bhama in school examinations, while ascertaining correctness and genuineness of merit drawn by the Selection Committee, which had taken into consideration only academic record pertaining to B.Sc./B.B.Sc./M.Sc./M.M.Sc. and Ph.d.

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5. Mr. Lokender Thakur, learned counsel representing the University, also stated that selection was carried out by the Selection Committee comprising of eight experts, strictly in accordance with advertisement. Mr. Thakur, further contended that perusal of marksheet as placed on record by appellant (Satya Bhama) itself suggests that Selection Committee had evolved its own mechanism to ascertain merit of candidates and accordingly, awarded marks to the eligible candidates as per their entitlement. 6. Mr. Divya Raj Singh, learned counsel representing the respondent-Satya Bhama, in both the appeals, vehemently opposed aforesaid submissions having been made by the learned counsel on the other side and stated that there is no illegality or infirmity in the judgment passed by learned Single Judge, rather, same is based upon correct appreciation of evidence adduced on record by the University i.e. bio-data, which certainly suggest that his client was on a better footing, so far as academic record is concerned. Learned counsel representing respondent No.-2 Satya Bhama, further contended that since his client was appointed as Research Associate on 15.5.2001, she had experience in the in the

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relevant field in the University with effect from 19.3.2001, whereas selected candidate i.e. Seema had no such experience. Mr. Divya Raj Singh, further contended that, by now it is settled law that decision of selection committee can be interfered with where parameters with regard to qualification and experience have been ignored by selection committee and a candidate, who is less meritorious is selected to the post in question. Since in the instant case, Seema, was unduly favoured by the Selection Committee, her selection was rightly set aside by the learned Single Judge.

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7. We have heard the learned counsel for the parties and gone through the record carefully.

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8. Before ascertaining the correctness and genuineness of the aforesaid submissions having been made by the learned counsel representing the parties vis-à-vis impugned judgment passed by learned Single Judge, it may be taken note of that pursuant to direction issued by this Court, entire record pertaining to selection in question was made available to this Court by the University, perusal whereof certainly suggests that Seema procured 32.9 marks in total and Satya Bhama procured 28.10 marks in total. It also emerges from the merit list drawn by the selection committee that Seema was selected as SC candidate against the post of Assistant Extension Specialist (Home Science). It also emerges from record that two experts were also associated by the Selection Committee from other Universities. As has been taken note above, that as per advertisement (annexure A-1), essential qualification

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for the post in question was M.Sc. having qualified NET from UGC/CSIR, ICAR or similar test accredited by UGC/State in the concerned discipline/subject, as such this Court sees no force in the arguments advanced by learned counsel representing Satya Bhama (writ petitioner) that his client was better qualified than Seema, who was admittedly possessing degree of M.Sc. and had also qualified NET.

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9. In the aforesaid background, we find considerable force in the arguments having been advanced by learned counsel representing Seema and University that there was no occasion for learned Single Judge to place heavy reliance upon the bio-data of Satya Bhama, which was also made available during hearing of the case by the learned counsel representing University.

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10. It nowhere emerges from the impugned judgment passed by learned Single Judge that record of selection committee was perused before coming to the conclusion that selection of Seema was bad in law. Though, it emerges from impugned judgment that record of selection committee was summoned, but, unfortunately, there is no mention of perusal of record, if any, by the learned Single Judge, while determining correctness of merit drawn by the Selection Committee, rather, impugned judgment clearly suggests that learned Single Judge, with a view to ascertain merit of Satya Bhama, ventured to take into consideration her bio-data. Factum with regard to Satya Bhama having more marks in matriculation as well as her working as teacher in some school, weighed heavily

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with the learned Single Judge, but, interestingly, learned Single Judge instead of comparing qualifications possessed by both the candidates in M.Sc. (which was essential qualification) compared bio-data of both the candidates, wherein, admittedly, they had given complete details of their educational qualifications starting from matriculation till M.Sc./NET.

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11. After having carefully perused merit list drawn by selection committee, we are convinced and satisfied that marks obtained in B.Sc./M.Sc. were taken into consideration by selection committee, while drawing merit list. Though, there was no requirement, as such, for selection committee to take into consideration marks obtained by candidates in B.Sc., because, it was not essential qualification as prescribed in the advertisement (Annexure A-1), record suggests that marks obtained in B.Sc. were also taken into consideration. Since, Satya Bhama obtained 66.7% marks in B.Sc. and 65% marks in M.Sc., she was awarded 6.6 and 6.5 marks qua her qualification and Seema, who had obtained 64% marks in B.Sc. and 65% marks in M.Sc, was awarded 6.4 and 6.5 marks for her qualification. Though, advertisement placed on record by Satya Bhama suggests that essential qualification required for appointment as Assistant Extension Specialist (Home Science) was M.Sc. and NET, it emerges from the record of selection committee that it had evolved its own scheme/mechanism to evaluate candidates, who had applied for the post in question. It also emerges from merit list that Seema was awarded 11 marks in

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interview whereas, Satya Bhama was awarded 8 marks. Though, this is not the case of Satya Bhama that she was awarded lesser marks in interview, but, even if three more marks are given to Satya Bhama, even then she would score 31.10 marks. So far as marks qua publication are concerned, definitely Court can not substitute its judgment for the wisdom of the Selection Committee, which in its wisdom found Seema to be more suitable for the post in question.

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12. Hon'ble Apex Court in Guman Singh versus State of Rajasthan and others, 1971(2) SCC 452, as also taken note by the learned Single Judge, has categorically held that the term ‘merit’ is not capable of an easy definition but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Hon'ble Apex Court has further held that objective of introducing the idea of merit in the procedure of promotion is to serve public interest and not the personal interest of the official group concerned.

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13. In the instant case, as has been discussed herein above, there is nothing on record from where it can be inferred that the Selection Committee did not determine merit of candidates, who applied for the post in question, in a just and fair manner, rather, this Court, after having carefully perused record of Selection Committee, differs with the findings returned by learned Single

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Judge that Satya Bhama, was more meritorious than Seema. Satya Bhama may be more meritorious than Seema, who was selected by the Selection Committee, but the fact remains that she was not found suitable by the Selection Committee comprising of experts on the subject. It is well settled by now that Court can not substitute its judgment for the wisdom of the Selection Committee.

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14. Hon'ble Apex Court, in Badrinath versus Government of Tamil Nadu and others, (2000) 8 SCC 395 has held that Courts and Tribunals cannot interfere with assessments made by the Departmental Promotion Committee in regard to merit or fitness for promotion unless there is a strong case for applying the Wednesbury doctrine or there are mala fides.

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15. In the instant case, though Mr. Divya Raj Singh, learned counsel representing Satya Bhama (writ petitioner), while inviting attention of this Court to the records, made an attempt to persuade this Court that selection committee met with a premeditated mind to select Seema, but aforesaid argument appears to be totally baseless, because, no material, if any, has been placed on record suggestive of the fact that selection committee favoured Seema, at the time of interview. Since, it emerges from record that Satya Bhama was working as a Research Associate prior to her applying for the post, allegations, if any, of favouritism could be leveled against Satya Bhama by Seema, by stating that authorities concerned have favoured Satya

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Bhama in selection, since she was already working in the Institution, she had a better say in the University as compared to Seema. Moreover, Satya Bhama, in her petition, neither alleged mala fides against members of the Selection Committee nor has made them party.

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16. Leaving everything aside, it is well settled that it is not open for a candidate to appear in the interview/selection process and then to challenge it later.

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17. Hon'ble Apex Court in Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 has held as under:

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The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], 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[5], this Court held that :

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"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[6] and Rashmi Mishra v. M.P. Public Service Commission[7])."

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The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.

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In Manish Kumar Shah v. State of Bihar[8], the same principle was reiterated in the following observations :

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"16. We also agree with the High Court that after having taken part in the process of selection knowing

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fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 : (2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171, AmlanJyotiBorooah v. State of Assam MANU/SC/0077/2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (supra)."

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In Vijendra Kumar Verma v. Public Service Commission[9], candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.

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In Ramesh Chandra Shah v. Anil Joshi[10], candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :

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"18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome."

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In Chandigarh Administration v. Jasmine Kaur[11], it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection.

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In Pradeep Kumar Rai v. Dinesh Kumar Pandey[12], this Court held that :

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"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."

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This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam[13].”

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18. In view of above, both the appeals are allowed. Judgment dated 20.7.2010 passed by a learned Single Judge of this Court in CWP(T) No. 13586 of 2008 is set aside. Pending applications are disposed of. Interim directions, if any are vacated.

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(Sanjay Karol)

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Acting Chief Justice

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(Sandeep Sharma) Judge

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July 5, 2017 (vikrant)

Seema v. Csk H.P.Krishi Vishwavidyalaya

Case brief

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Seema v. Csk H.P.Krishi Vishwavidyalaya

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