P.
Mohanan Pillai Vs. State of Kerala & Ors [2007] Insc 203 (23 February 2007)
S.B. Sinha & Markandey Katju
[Arising out of SLP (Civil) No. 5064 of 2006] S.B. SINHA, J :
Leave granted.
Oil Palm India Limited is a Government Company (for short, 'the Company).
The Union of India and the State of Kerala are its shareholders.
It is indisputably a 'State' within the meaning of Article 12 of the
Constitution of India. Appellant herein was appointed as a worker in the
services of the Company in the year 1982. 12 posts of
Watchman/Messenger/Attender fell vacant. Recruitment to the said post is not
governed by any statutory rules. Admittedly, all the workmen who were in
service of the Company were to be considered therefor. Applications having been
invited for filling up of the said 12 posts, 253 persons applied therefor. A
written test was conducted on 18.01.2001. Appellant herein stood first in the
written examination. The said written examination was conducted by the Kerala
State Productivity Council in terms of the resolution of the Board of Directors
of the Company dated 13.06.2000. It is not in dispute that the written test was
conducted for eliminating those who had failed to secure the minimum qualifying
marks in the written test. It has also not been disputed that out of 253
applicants, only 197 appeared therein.
However, keeping in view the total number of posts which were required to be
filled up, only 36 candidates who got the highest marks were called for
interview, appellant being one of them. It is furthermore not in dispute that
after a policy decision was taken to call only those candidates who had come
within the zone of three times of the number of posts, the minimum
qualification was reduced to 46 marks and 11 more persons were permitted to appear
at the interview. It has furthermore not been disputed that 100 marks were
fixed both for written test as well as viva-voce.
Appellant, having not been selected, filed a writ petition, on the premise
that Respondent Nos. 4 and 5 were appointed by the company, although not
eligible therefor. It had categorically been stated that they were called for
interview only one day prior to the holding thereof. It was alleged that the
top officers of the Company personally went to the houses of Respondent Nos. 4 and
5 and handed over the appointment orders on 22.05.2001, which was a Sunday. It
was also contended that the list of the selected candidates had not been
published.
The Writ Petition of the appellant was dismissed by a learned Single Judge
of the High Court by a judgment and order dated 22.12.2005, holding :
"From the counter affidavit and also from the lists furnished by the
petitioners themselves it is clear that of the 11 included in the additional
list only two were appointed and they are serial Nos. 6 and 8 in the additional
list. It is also stated in the counter affidavit that 50% marks were given to
the written test and 50% marks for the interview. That will not vitiate the
selection as held by the Supreme Court in Subash Chandra Verma v. State of Bihar
1995 Supp. (12) SCC 325. Selection is a matter of policy and if the Selection
Committee thought it fit to have the ratio of 1:4 for the purpose of selection,
it cannot be said that the selection is vitiated on that only ground. It is now
settled law that it is for the party who alleges vitiating factors like
favouritism, malafides etc. to plead and prove the same"
A Writ Appeal preferred thereagainst by the appellant was also dismissed by
a Division Bench of the High Court, opining :
-
"We find hardly any substance in the arguments as above. Interview
was a mandatory step to be followed.
In the matter of selection to the post of Watchman, we feel it is more
appropriate to set apart 50% marks for the interview. Physical fitness and
personality are essential requirements for a watchman; Resourcefulness,
aptitude and initiative are qualities essential for a Messenger and Attender,
apart from the bookish knowledge. The above qualities are best assessable by an
interview."
Dr. K.P. Kylasanatha Pillay, the learned counsel appearing on behalf of the
appellant, assailed the judgment of the learned Single Judge as also the
Division Bench of the High Court, contending :
-
The High Court committed a manifest
error in passing the impugned judgment in so far as it failed to take into
consideration the fact that the zone of consideration cannot be enlarged
arbitrarily.
-
Having regard to the nature of the duties required to be performed by the
Watchman/Messenger/Attender, 100 marks could not have been fixed for oral
interview.
Mr. C.N. Sree Kumar, the learned counsel appearing for the company and Mr.
G. Prakash, the learned counsel appearing on behalf of Respondent No. 5, on the
other hand, would support the judgment.
Selection of the candidates was to be made from amongst the workers who had
been working in the Company for a long time. Although there may not have been
any statutory rules governing recruitment to the posts in question, evidently a
practice therefor was prevailing. Rule of the game for the said purpose was
fixed, namely, 36 persons would be called for interview from amongst those who
were successfully competed the written examination. The fact that the appellant
obtained more than 73% marks in the written examination and topped the list is
not in dispute. The fact that he was eligible for consideration for appointment
in the post is also not in dispute. It has furthermore not been in dispute that
the minimum qualifying marks in the written test was fixed. It is, however, not
known whether the same was 50% or not, but then it was admittedly higher than
46%. The Managing Director of the Company in his counter affidavit
categorically stated :
"Since the number of posts that were available to be filled up was 12,
initially it was decided to call 36 candidates who had scored the highest marks
in the written test and these candidates were called to appear for an interview
on 22.3.2001. However, it was then decided by the Company to enlarge the zone
of consideration to 1:4 and on the basis of this decision, call letters were
again issued to the next 11 candidates, fixing a cut off mark of 46 out of 100.
The candidates who were thus called for the interview were interviewed on
22.3.2001 by a panel consisting of the Company's Chairman, Managing Director, Under
Secretary to the Department of Agriculture, Government of Kerala and an outside
expert member from the Kerala State Productivity Council, Kalamassery"
Why such a decision had been taken after the publication of the result of
the written examination and after calling 36 candidates for interview is not
known. Why the Company intended to enlarge the zone of consideration from 1 : 3
to 1 : 4 has also not been disclosed. Why the cut-off mark was also lowered
remained a mystery.
It may be that in a given situation, a decision of the State may be changed,
but therefor good and sufficient reasons must be assigned. The Company failed
to do so. The decision taken in this behalf smacks of arbitrariness. It
prejudiced the candidates like the appellant.
It is now well-settled that ordinarily rules which were prevailing at the
time, when the vacancies arose would be adhered to. The qualification must be
fixed at that time. The eligibility criteria as also the procedures as was
prevailing on the date of vacancy should ordinarily be followed.
In Pitta Naveen Kumar & Ors. v. Raja Narasaiah Zangiti & Ors. [2006
(9) SCALE 298], a rule framed by the State of Andhra Pradesh reducing the
cut-off mark was struck down by this Court, holding :
-
"The question, however, remains as to whether the State could
reduce the cut-off marks. If the cut-off mark specified by the State is
arbitrary, Article 14 would be attracted. The Tribunal did not have any
jurisdiction to pass an interim order directing reduction in the cut-off mark.
The cut-off mark at 66% was fixed having regard to the ratio of the candidates
eligible for sitting at the written examination at 1:50. An interim order as is
well- known is issued for a limited purpose. By reason thereof, the Tribunal
had jurisdiction to grant a final relief.
-
Moreover, the Tribunal could not have directed the Commission to do
something which was contrary to rules. An interim order is subject to variation
or modification. An interim order would ordinarily not survive when the main matter
is dismissed. The Commission also did not intend to abide by the said
directions. It wanted the State to pass an appropriate order. It was, pursuant
to or in furtherance of the said desire of the Commission as also the direction
of the Tribunal as contained in its interim order dated 6.1.2005, GOMs 200 was
issued. The said Government Order was, thus, not issued by the State of its
own. There was no independent application of mind. The statutory requirements
for passing an government order independent of the interim directions issued by
the Tribunal were wholly absent."
Reliance placed my Mr. Sree Kumar on Vijay Syal and Another v.
State of Punjab & Others [(2003) 9 SCC 401] runs counter to the
submission of the learned counsel. Therein, the appellants secured less marks
than those whose appointments were in question. In that situation it was held
that they were to be denied appointments on the ground that they were called
for in the interview in the second list, the position of the appellant could not
improve. Allegedly, when those candidates who belonged to Scheduled Caste and
had secured higher marks and in that view of the matter, the appellant therein
could not be selected in the general category.
In the said decision, however, the Bench categorically opined that the marks
allocated for the viva voce should not normally exceed 12.5% noticing the
decisions of this Court in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC
417], All India State Bank Officers' Federation v.
Union of India [(1997) 9 SCC 151] as also Jasvinder Singh v. State of
J&K [(2003) 2 SCC 132]. The question as to how much marks should be
allocated for interview would depend upon the post and nature of duties to be
performed. The nature of duties to be performed on the post of Watchman/Messenger/Attender
is not such which requires a high intellectual ability or any particular trait
of the candidates which is required to be judged by an expert. [See e.g.
I.I.T., Kanpur v. Umesh Chandra and Others (2006) 5 SCC 664] We may notice
that in Inder Parkash Gupta v. State of J&K and Others [(2004) 6 SCC 786],
a three-Judge Bench opined :
-
"It is true that for allocation of marks for viva voce test, no
hard-and-fast rule of universal application which would meet the requirements
of all cases can be laid down. However, when allocation of such marks is made
with an intention which is capable of being abused or misused in its exercise,
it is liable to be struck down as ultra vires Article 14 of the Constitution of
India.
-
We would proceed on the assumption that the Commission was entitled to
not only ask the candidates to appear before it for the purpose of verification
of records, certificates of the candidates and other documents as regards
qualification, experience, etc. but could also take viva voce test. But marks
allotted therefor should indisputably be within a reasonable limit. Having
regard to Rule 8 of the 1979 Rules higher marks for viva voce test could not
have been allotted as has rightly been observed by the High Court. The Rules
must, therefore, be suitably recast."
In this case allocation of marks for interview was in fact misused. It not
only contravened the ratio laid down by this Court in Ashok Kumar Yadav (supra)
and subsequent cases, but in the facts and circumstances of the case, it is
reasonable to draw an inference of favouritism. The power in this case has been
used by the Appointing Authority for unauthorized purpose. When a power is
exercised for an unauthorized purpose, the same would amount to malice in law [
See The Manager, Govt. Branch Press and Another v. D.B. Belliappa - AIR 1979 SC
429, Punjab State Electricity Board v. Zora Singh and Others (2005) 6 SCC 776
and K.K. Bhalla v.
State of M.P. and Others (2006) 3 SCC 581].
For the reasons aforementioned, the impugned judgments cannot be sustained,
which are set aside accordingly. Selection of Respondent Nos. 4 and 5 is set
aside. The company is directed to appoint the appellant. The appeal is allowed
with cost. Counsel's fee assessed at Rs. 10,000/-.
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