Haryana Staff Selection Commission PTI Post Challenged in Supreme Court

This post is a judgment digest selection process of Physical Training Instructor before Supreme Court wherein the orders of High Court Chandigarh single judge bench and division bench were in consideration before the hon’ble court. The Hon’ble Supreme Court cited the difference between ‘Malice in Fact’ & ‘Malice in Law’ through this judgment. The Punjab Haryana High Court quashed the appointments Haryana Staff Selection Commission citing favouritism & arbitrariness by the authorities. Now the people who were appointed were asked to leave their jobs who challenged it before the Supreme Court where the rules of the game were changed subsequently which is not allowed as per Constitution of India.

Also Read- Service Matter Related MACP Scheme Legal Advice

Let’s have the judgment.

Judgment Digest on Ramjit Singh Kardam vs Sanjeev Kumar on 8 April, 2020

The present post will give you an interesting insight on certain issues with regard to the illegalities made during selection process for a state government post and will enlighten the concepts of “malice in law” and “malice in fact” briefly. The case is basically about the controversial selection process conducted by Haryana Staff Selection Commission for the post of Physical Training Instructor wherein there was no defect found in the original advertisement and mode of selection proposed by the Commission on 28.12.2006 but the uncertainty of the credibility of commission crept in after they quashed the written examination altogether and went for direct interview of the qualified candidates as per the academics qualification and the irony of this selection process was that the actual criteria of selection was published along with the results of interview which was too biased as per the petitioner and thus a writ petition was filed by petitioner before the Single Judge who allowed the petition, quashed the results of Commission and found that there was certain amount of favouritism involved from the Commission’s side and ordered a fresh examination of all the candidates. The order was appealed in the High Court, where the judgment of Single Judge was upheld with certain modifications with regard to the re-examination of the candidates. Thus, SLPs were filed by the selected candidates for consideration of their employments of more than 9 years as their selection was set aside by the aforementioned courts.

Also Read- CAT Appeal in High Court Chandigarh Challenging Seniority

The petition calls for setting aside of the selection process of the PTI conducted by the Haryana Staff Selection Commission as there were lot discrepancies in the respective process of selection along with an object designed to downgrade the standards of public employment instead of upgrading. The selection process was full of irregular changes with regard to its exam pattern and involved biasness of the commission for their favourites ignoring the actual eligible candidates for the post. The court emphasised on the aspect whether the candidate could be estopped for challenging the examination criteria after declaration of results, just because he was not selected. The court rightly observed that one who is participating in the examination without any objection cannot turn around and challenge the procedure of selection but in the present case facts are a bit different and the judgment states that when the candidate is not aware of his criteria of selection and the criteria is published first time along with the results of the examination, then he has the right to challenge the particular process of selection and cannot be estopped. There is also “malice in law” witnessed in the petition where the decision regarding the scrapping of written examination and going for direct interview was notified by the Chairman of the Commission whereas the decision should be a cumulative decision of the entire Commission.

Also Read- Rounding of Disability Pension by AFT Tribunal

Petitioner’s Arguments-

The appellants, namely Ramjit Singh Kamdar& Othershave filed a set of Special Leave Petitions against the judgment given on 30.09.2013 by the Divisional Bench of High Court of Punjab and Haryana. The appellants are the selected candidates for the post of Physical Training Instructor (PTI) whose selection was set aside as per the aforementioned judgment. As per the facts, the Haryana Staff Selection Commission had given an advertisement on 20.07.2006 inviting applications for various posts under the category no. 23, there were 1983 posts of PTI vacant. The selection process for the post was through written examination or by any rational criteria adopted by the Commission. There were about 20,836 applications received by the Commission and the written exam was conducted on 21.01.2007 which was a 100 marks MCQ exam. But a public notice was issued on 01.02.2007 by the Commission stating that the aforesaid written exam was cancelled as there were several complaints with regard to malpractices and cheating committed in the written examination. The commission had re-notified about conducting another written examination on 20.07.2008 but before conducting that exam another notification was issued by the commission cancelling the written examination. The commission came up with another notice of shortlisting the candidates through interview and decided to shortlist eight times candidates for the advertised post of PTI on the basis of their essential academic qualifications for each category. The dates of interview were from 02.09.2008 to 17.10.2008 and about 15,582 candidates appeared for the interview. The results of the interview were declared on 10.04.2010 and published on 11.04.2010. After the declaration of results the commission published the criteria of the selection in the newspaper which included 60 marks for the Academics part and 30 marks for the Viva Voce, a total of 90 marks criteria was given for selection of the candidates.

Also Read- Armed Force Tribunal Enhanced Pension Case

As the respondents were not satisfied with the criteria mentioned in the newspaper, they filed a writ petition impleading the Commission as well as the selected candidates and demanded for re-examination for the concerned post as the criteria given by the Commission was not satisfactory and was not provided to the candidates before conducting of the interviews. Hundreds of candidates were served with the petition and they filed their written statements in the writ petitions but many of them were left out also who were served with the petition by the means of local daily “The Tribune”.

From the appellants side, the counsel presenting the petition were Shri Kapil Sibal, Shri V. Giri, Shri Ravindra Srivastava, Shri Navneeti Prasad Singh and other learned counsel. It was contended by the counsel of appellants that there are no adequate grounds and materials provided before the Single Judge and Divisional Bench of High Court for setting aside of the entire selection process and thus these judgments should be quashed. It further argued by the counsel that the respondents participated in the examination without any demur or objection and because they were unsuccessful in getting selected, they can’t challenge the selection process. As per the principle of estoppel, they are barred from challenging the selection after the declaration of results. The counsel also confirms that criteria of selection was uniform for all the candidates and as the writ petition of the respondents didn’t challenge the criteria of selection and hence are not allowed to challenge the criteria after declaration of results. It is also submitted that there are no allegations of any mala fide intentions against the Chairman or any member of the Commission or any selected candidates. There is also error seen on part of High Court, who accepted the grounds of challenge that by those who secured good marks in academics were deliberately given less marks in interview to scarp them down and grounds mentioned for scrapping of the written examination are valid.

Also Read- WRITS IN PUNJAB HARYANA HIGH COURT CHANDIGARH

The selection on the basis aforementioned criteria was also applied in the earlier selection of 2003 with bifurcation of 60 marks for academics and 30 marks for Viva voce and the change in criteria was signed by all the members of the Commission. The counsel also contends that the selected candidates are now over age and have worked for over 10 years at the allotted post and at this stage they cannot be displaced and as the Court cannot start verifying the marks given in the Viva, it is contended that getting an increased marks in the Viva voce is not violative of any rules and regulations. It was also contended that PTI is a dying cadre and converted into TGT which has a different set of qualifications, thus there are no new posts created for PTI.

Respondent’s Arguments-

Respondent, namely Sanjeev Kumar had applied for the post of Physical Training Instructor by the means of advertisement given under Category no. 23. There were 1983 posts available for the respective post and it was mentioned by the Commission that a written examination of 100 MCQs will be conducted for the post and then selected candidates will go for Viva voce of 25 marks. After the written examination was conducted, it was later notified by the Commission that the exam was cancelled as there were too many complaints with regard to cheating and malpractices being held in the examination. Thereafter, the Commission re-notified about the written examination to be conducted but another notice on 30.06.2008 was issued by the Commission cancelling the written examination and the Commission finally agreed to shortlist the candidates for interview by referring to their academic qualifications. Commission had decided to shortlist eight times the number of candidates for the interview. The interview was conducted from 02.09.2008 to 17.10.2008. Even though, the interview was completed in the year 2008 the results of the interview were declared 1 and half year later on 10.04.2010, and the criteria of the selection was published in the newspapers along with the select list. The select list was challenged and a large number of writ petitions were filed in the High Court and the petitioners had even procured the information regarding the selection process of Haryana Staff Selection Commission from the Right to Information Act. It was pleaded by the petitioner that there were many candidates who had less marks in the academics’ section but were awarded more marks in the Viva voce ranging from 20-27 and whereas the candidates with higher educational qualifications were given less marks in the Viva voce. The petitioners also contended that the criteria of selection were laid down by the Commission then it was not right to change it for getting favoured results and bring the candidates within the zone of selection. On 30.06.2008 a type note by the Superintendent was prepared that the written examination might get cancelled due to administrative reasons but there was no specific mention of the reasons due to which the exam was cancelled. Apart from that it was noted that shortlisting was to be done as per the academic qualifications of the candidates but the Chairman on 31.07.2008 gave up the particular criteria also and called for all the eligible candidates for the interview which clearly shows biasness of the commission to get the candidates as per their wish and not as per the requisite qualifications.

Also Read- Chandigarh High Court Regularization in Government Job Case

The counsel of respondents, Shri Manoj Swarup submits that respondents were unaware of the criteria put up by the Commission regarding the selection and they came to know about it only when the criteria was published along with the final result. It was further contended that no valid reason was given for scraping of written examination as written examination would have been a more reliable source for scrutinizing the merit of candidates. The divisional bench of High Court found that after inspecting the original records of the Commission that the meritorious candidates were given 7-13 marks in Viva Voce whereas the candidates with poor academics were given 20-27 marks in Viva voce which clearly indicates partiality of Commission. The delay in giving out of the results also creates doubt in the fairness of the selection. Lastly it is submitted by the counsel that the selection has been rightly set aside by the Single Judge and Divisional Bench and the counsel would pray for conducting a fresh selection enabling the petitioners to participate and get selected legitimately.

Also Read- Lateral Entry in Government Jobs

Order of the Court-

The Supreme Court decided that a fresh selection was to be conducted for the all the applicants including the selected candidates and no refund of salary or any other benefit shall be asked from the selected candidates and not even from the selected candidates who have retired from service. The entire process of fresh selection to be done within 5 months period dating after the lockdown is over.

There were major issues which were raised from both parties, one of the major issue was whether the right of estoppel was applicable on the petitioners as they had participated in the selection process without any objection or protest and after the declaration of the results, all those who were not selected were questioning the authenticity of the selection process. Later, it was decided by the Single Judge and Divisional Bench of High Court that the petitioners had the right to challenge the selection process of the Commission as it was declared on the day of result and not before and thus right of estoppel was applicable on the part of the petitioners. Another controversial issue which is of importance is whether there was “malice in fact” on the part of Chairman of the Commission as he was main person signing the major documents for changing of the selection process. The two main concept of “malice in law” and “malice in fact” were discussed with the help of various case laws but it was finally decided that the present case was not a case of “malice in fact” as no such proof was found clarifying the intentions of the Chairman and the fault was on the part of the entire Commission.

Also Read- Challenge Suspension from Government Job in Court

After listening to the contentions of both the parties and taking inferences from the abovementioned judgments, it was found that the Single Judge and Divisional Bench of High Court were correct in setting aside of the selection process followed by the Haryana Staff Selection Commission. The criteria followed by the Commission involved a lot of discrepancies and ambiguity among the candidates and it also clarified the mala fide intention of the Commission of accommodating their favourite candidates in place of the deserving candidates. The court further stated that the frequent change in the mode of selection could be considered if their aim was to shortlist candidates with higher merit but the Commission was making alterations with sole purpose of lowering the standard of the selected employees and was against the Article 309, 14 and 16 of the Indian Constitution. The court also differentiated between the two concepts of “malice in law” which meant any person who has done some act in contravention of law even if he did that out of ignorance and “malice in fact” means that the person had the intention to commit the wrongful act. Even though, the present case didn’t involve any of the two concepts, but there was certain level of illegalities on the part of the Commission and thus they were asked to re-conduct a fresh examination for the post of PTI.
Thus, as per the abovementioned facts and issues of the case Ramjit Singh Kardam vs Sanjeev Kumar, the court ordered to dispose off the appeals filed by the appellants as they stand no merit in them and favoured the order given by the Single Judge and Divisional Bench of the High Court of setting aside of the selection made on 10.04.2010 and conduct a fresh examination for all the applicants who applied for the post as per the advertisement on. 6 of 2006 along with the selected candidates. The case basically acknowledges that right to estoppel can be used by the candidates when there is some flaw in the guidelines of the selection process or they are ambiguous and in this case there was no mention of the criteria and thus the candidates have full rights to challenge the selection process of the State Commission, even after the publishing of the select list. But in case the guidelines are properly notified then the candidates won’t have the right to challenge the selection after the declaration of the results. This case doesn’t include any concrete evidence proving “malice in fact”of the Chairman but favouritism is evident on part of Commission. Lastly, the Court has observed that even though the State government has the right to devise their own ways of examination and selection process, but they should not compromise the fundamental rights of the citizen enshrined in the Constitution of India.

Also Read- Reinstatement in Job on Acquittal in Criminal Case

For case specific advice, please contact best/top/expert Labour Service Lawyer Advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur Baltana (Punjab Haryana High Court).

This post is written by Rhea Benerjee.

For more info, dial 99888-17966.