Sadananda
Halo & Others Vs. Momtaz Ali Sheikh & Others [2008] Insc 307 (27 February 2008)
S.B.
Sinha & V.S. Sirpurkar
CIVIL
APPEAL No 1609 OF 2008 (Arising out of SLP (C) No.3536 of 2007) WITH
CIVIL APPEAL NO. 1614 OF 2008 (Arising out of SLP (C) No.6576 of 2007) Khagen Hazarika
& Others . Appellants Versus The State of Assam & Others . Respondents WITH
CIVIL APPEAL NO 1615 OF 2008 (Arising out of SLP (C) No.6581 of 2007) Ananda Das
& Others, etc. etc. . Appellants Versus Md.
Mainul Haque Chowdhury & Others, etc. etc. . Respondents WITH CIVIL APPEAL
Nos. 1610-1613 OF 2008 (Arising out of SLP (C) Nos.17219-17222 of 2007) Shri Dilip
Barman & Ors. etc. etc. . Appellants Versus Md. Mainul Haque Chowdhury & Ors. etc.etc. . Respondents V.S.
SIRPURKAR, J.
1.
Leave granted in Special Leave Petition (C) Nos.3536/2007, 6576/2007, 6581/2007
and 17219-17222 of 2007.
2. The
present Judgment shall dispose of all the above mentioned Special Leave
Petitions.
3. A
large number of petitioners have filed the above sets of Special Leave
Petitions challenging therein a common judgment of the Guwahati High Court
disposing of as many as 54 Writ Appeals which were filed against the judgment
and order passed by the learned Single Judge of that High Court disposing of as
many as 222 Writ Petitions. All those 222 Writ Petitions were disposed of by
the learned Single Judge by a common judgment. The writ petitions pertained to
the selections in a selection process for the 5500 posts of Armed Constables
which was initiated by advertisements dated 21.8.2004. This advertisement was
based on the separately identified vacancies for each Armed Police Battalion
having its permanent headquarters in a District. The recruitment was to be held
in 25 different centres covering each District of State of Assam for the vacancies identified
separately for that district. As many as 2 lakh candidates took part in the
recruitment process which commenced on 3rd December, 2004 and lasted upto 11th December, 2004. On completion of the recruitment
drive, separate select-lists for each District for the Armed Police Battalion
located in the District and the District Executive Force were prepared.
These
select-lists were challenged in the above mentioned 222 writ petitions by
nearly 3000 unsuccessful aspirants. Later on more than 1000 selected candidates
also got themselves impleaded in the writ petitions.
Initially
the court sought for the records of the selection process and ordered the same
to be kept in safe custody of the Registry of the court.
This was
done since the apprehensions were expressed by the Writ Petitioners that there
may be tampering of records. A scrutiny of these records was got done by the
learned Single Judge through three Judicial Officers who were appointed for
that purpose. A sample survey of the records of the selected/unsuccessful
candidates was done by the three Judicial officers. While going through the
records, the learned Single Judge considered the same District-wise and
ultimately upheld the selections in respect of 10 Districts while the
selections as well as the selection process in the other Districts were set
aside and quashed. This gave rise to the Writ Appeals both by the State as also
by the selected candidates. The appeals, therefore, came to be filed in respect
of the following Districts and Battalions:
1) Dhubri
2) Karimganj
3) Hailakandi
4) Cachar
5) Sibsagar
6) Jorhat
7) Nagaon
8) Darang
9) Sonitpur
10) Goalpara
11) Morigaon
12) Barpeta
13)
4th APBN, GRP, CID, SB & ACB
14)
Commando BN & Kamrup DEF
15)
10th APBN The Division Bench allowed the appeals pertaining to
(i) Karimganj
District,
(ii) Hailakandi
District,
(iii)
Commando Battalion & Kamrup DEF; and
(iv)
10th AP Battalion.
The
appeals pertaining to the rest of the Districts/Battalions were dismissed. As
such the selections made in those Districts/Battalions were also set aside as
was done by the learned Single Judge. In the present Civil Appeals before us we
are concerned with the selections of only three Districts, they are:
(i) Dhubri,
(ii) Barpeta;
and
(iii) Sonitpur.
Civil
Appeal arising out of SLP (C) No.3536/2007 pertains to Dhubri District, Civil
Appeal arising out of SLP (C) Nos.6581 and SLP (C) Nos.17219-17222 of 2007
pertain to Barpeta District while Civil Appeal arising out of SLP (C) 6576 of
2007 pertains to Sonitpur District. We will, therefore, be limiting ourselves
only in so far as those Districts are concerned.
4. As
has been stated earlier, there were advertisements dated 21.8.2004 published in
all the leading newspapers of the State which provided the
District/Battalion-wise vacancies as also the vacancies meant for the reserved
categories candidates. The notice also provided the further details regarding
the dates and venue of the Recruitment Rally in each District. The minimum
physical standards for male and female candidates were also indicated therein.
The educational qualification was 8th Class passed while age limit was between
18 to 25 years as on 1.1.2004, relaxable by three years in the case of
candidates belonging to SC/ST. 10% of the vacancies were to be filled up by
women candidates while further 5% were reserved for compassionate appointments.
Under the procedure of selection it was provided as under:
"All
the candidates will have to undergo test on physical standard as stated above,
if their application forms found correct and in order in all respect.
Candidates found to have any physical deformity duly certified by the medical
officer present in the test, shall be rejected. Thereafter, all male candidates
will be asked to run a race of 0.60 KM and female (sic) candidates qualified in
the race shall be allowed to appear for subsequent test mentioned below.
(a)
Physical efficiency test Maximum marks Qualifying marks
1. 100
Mtrs. Race
2.
High Jump
3.
Long Jump
(b)
Personal interview 50` 25 General awareness, general knowledge and language
Only candidates who qualify in the physical efficiency test shall be short
listed for appearing in the personal interview (viva voce).
(c)
Final selections will be made district/battalion wise on the basis of the over
all merit on physical efficiency test and personal interview (viva voce) and
reservation of quota under RVSP Act, 1978."
One
Selection Board was constituted for each District consisted of:
"(1)
Superintendent of Police/Commandant (whoever is senior Chairman)'
(2)
Superintendent of Police/Commandant (whoever is junior Member)
(3)
One Medical Officer (to be nominated by the Joint Director, Health Services of
the District Member).
In the
Districts, where there is (sic) no Battalion headquarter, the Commandant of the
nearest Battalion was to be the Chairman or Member as the case may be, to be
nominated by the DGP. In the notification constituting the Selection Board, it
was also provided that the Selection Board shall (sic) also consider candidates
having HSLC or equivalent qualification or above from recognized
Board/University of Assam for recruitment to District
Executive Force (UB)."
The
guidelines were issued on 2.9.2004 for conducting recruitment tests.
As per
the said guidelines, the entry of the candidates into the Recruitment Rally was
restricted to 5,000 on a single day. The candidates were to submit their filled
in application forms to the Chairman of the Selection Board or his
representatives before participating in the elimination race.
For
the male candidates, the distance of the race was 1.60 Kms. while for the
female candidates it was 0.80 Kms. Only those candidates who could qualify in
the physical standards were permitted to participate in the elimination race
and only those who could qualify the elimination race were to be given identity
numbers after recording their Bio-Data in the prescribed register. Those who
could qualify in the elimination race were to face the physical test comprising
of 100 meter race, high jump and long jump and only those candidates who could
secure 25 marks out of the 50 allotted for physical efficiency test were to be
called for personal interview, for which the allotted marks were 50. Those
candidates who could qualify in the elimination race were to get 15 marks
whereas the 35 marks were reserved for the physical efficiency test wherein 15
marks were to be for 100 meter race, 10 marks were for long jump and 10 marks
for the high jump. The Recruitment Rallies were held between 3rd to 11th
December, 2004 and after completion of the entire process of selection the
select-lists for each District/Battalion were prepared. It was, at this stage
that the Writ Petition came to be filed firstly challenging the very recruitment
process and methodology adopted.
5. The
selections were ultimately held between 7th to 11th December, 2004. Though,
initially the candidates belonging to one particular District could take part
in the Recruitment Rallies for the posts of that District only, afterwards the
Government by its letter dated 16.11.2004 conveyed the decision that the
restrictions relating to District-wise selection of candidates being limited to
the candidates of those Districts only would not apply to the recruitment of
the Armed Police Battalion but would hold good only for the posts advertised
for the District Executive Force.
6. In
the writ petitions various challenges were made before the learned Single Judge
they were, inter alia,
(i) not
following the procedure in the employment notice;
(ii) non
maintenance of necessary Registers;
(iii) selection
of the candidates without their taking part in the selection process or the
selection of under-qualified and over-aged candidates;
(iv) selection
of those candidates who could not qualify the physical tests;
(v) interpolations/tampering
in the allotted marks to the candidates;
(vi) political
interference in support of some of the selected candidates;
(vii) allotment
of 50 marks for the personal interview segment as also
(ix) consideration
of huge number of candidates within a span of only 9 days. In short the whole
selection was dubbed as farcical. Learned Single Judge cancelled the entire
selection in respect of 15 Districts out of 26 Districts and that is how the appeals
were filed by the selected candidates as has already been clarified by us. Now
we are concerned only with the selections of three Districts named above.
7.
Though it was stated before us by the learned counsel appearing on behalf of
the appellants that the learned Single Judge as well as the Division Bench had
upset the selections only on the ground of non feasibility of completing the
interviews of large number of candidates in short time and further though the
learned counsel concentrated on that factor, it would be better to take account
of the general findings as regards the selection process recorded by the
learned Single Judge as well as the Division Bench to see whether those
findings would affect the selections.
10. It
was argued before the learned Single Judge that the selection process was
postponed on more than two occasions and there was an ulterior purpose on the
part of the government behind these postponements. It was also stated that
though initially there was a restriction of belonging to a particular District
in order to be able to take part in the selection process, such restriction was
later on removed by the State Government. Considerable arguments seems to have
been addressed on this aspect before the learned Single Judge. It was pointed
out that initially the selections were to be held earlier but they were
postponed to 18th to 24th November, 2004 on account of the bye-elections in one
of the Assembly Constituency, further the second postponement was made to 30th
November, 2004 by an order dated 2.11.2004 on account of Asian Car Rally, Kali Puja,
Diwali and Id Festivals and ultimately, the selections were postponed to the
second week of December and in the meantime the government by its letter dated
16.11.2004 had removed the restrictions relating to the District-wise selection
of candidates being limited to the candidates of those Districts only in cases
of posts advertised for District Executive Force.
11. A
further common contention was raised that this postponement was politically
motivated and the removal of the District restrictions was also politically
motivated and it resulted in large scale irregularities in the selection.
12.
The next contention was regarding the distribution of marks. It was pointed out
that 50 marks were allotted for the personal interview which was not correct.
Lastly it was contended that the interviews were farcical in nature and the
large number of candidates could not have been interviewed on a single day.
13.
Learned Single Judge did not give independent findings on these contentions but
chose to consider all these contentions together. He first fixed a benchmark of
maximum 250 candidates to be interviewed on a single day relying on certain
rulings of this Court. He also held that the State would have to justify the
allotment of 50 marks for the viva voce test.
The
learned Judge also recorded that while deciding about the effect of
postponement of interviews and the removal of District restrictions, he would
consider the case of each District basing the same on the scrutiny made by the
three judicial officers who were appointed by him to examine the District-wise
records. In para 25 the learned Judge held:
"The
above discussion would now require the court to record what has been revealed
by the scrutiny of the records that had been undertaken by the court and the
conclusions that the court considers prudent to reach on that basis. It would
not only be convenient but also imperative for the court to proceed in the
matter district/centre-wise as each selection has to be construed as a separate
and independent selection. What, however, must be emphasized, at this stage,
before embarking upon the necessary discussions is that the records of each
district have been scrutinized by the court only to determine the fairness of
the exercise performed while subjecting the huge number of candidates to the
different stages of the selection process. The court has not, even remotely,
been concerned with the marks awarded to any particular candidate; no attempt
has been made to evaluate the standards reached by the candidate at any of the
stages of the selection process.
It is
broad and general impression of the selection process that has been attempted
to be reached by the court on the basis of the records scrutinized and not a
minute and microscopic examination of the selection process. Again, it must be
emphasized that the scrutiny of the records has been made on a representative
basis, as already indicated in the opening part of the present judgment and the
conclusions as will be reached and recorded is by a process of correlation of
the result of the sample scrutiny with the rest of the cases constituting the
general trend. This, the court understands to be the only pragmatic manner of
resolution of the dispute involving the selection of nearly 5500 constables
from a total of over 2 lakh job seekers." (Emphasis Supplied) We do not,
however, find concrete findings having been given on the general submissions.
Before taking up this exercise the learned Single Judge seems to have rejected,
though indirectly, the objection raised by the State that having taken part in
the selection process, the unsuccessful candidates could not have complained
about the postponement of the selection process nor could they question the correctness
thereof after being declared unsuccessful in the same. Though the substantial
case law has been quoted by the learned Single Judge, the learned Judge relying
on Raj Kumar & Ors. v. Shakti Raj & Ors. [(1997) 9 SCC 527] went on to
hold:
"In
such circumstances, the court is of the view that in the facts of the present
case it would not be correct to refuse an adjudication of the merits of the
dispute raised by the petitioners."
The
learned Judge also observed that considering the enormousness of the selection
process, the court would have to uphold its adjudicatory mechanism to protect
the inherent requirement of fairness in the administrative process and rule of
law on the basis of "Basic Pleadings" thereby indicating his
satisfaction about the pleadings in the writ petitions which were fiercely
opposed by the State on the ground of absence of proper pleadings. Further, the
learned Judge justified the interference though the writ petitions were filed
by unsuccessful candidates who had participated in selection process without
demur. Similar view as taken regarding allotment of 50% marks to personal
interview. The learned Judge decided to depend on the Scrutiny Committee's
reports on allotment of marks to see whether the marks were awarded excessively.
14.
When we see the District-wise approach by the learned Single Judge, it is
apparent that in so far as Golaghat District (with which we are not concerned)
is concerned, the 50 marks allotted for viva voce were further bifurcated in
the following manner:
"1.
Educational Qualification 5 marks
2.
Smartness, general ambience 5 marks
3.
Language, reading and writing 10 marks
4.
Extra Qualifications 5 marks
5.
Proficiency in sports, marshal arts 5 marks 6. General knowledge and oral test
20 marks"
It was
argued before us on behalf of the Government that this was normally the pattern
of interviews practically in all the Districts as the guidelines were fixed for
the purpose of interviews (viva-voce) in the similar fashion commonly for all
the Districts. This was not contradicted before us and indeed it cannot be, for
the simple reason that it would only be the State which could be in a position
to address as to the standards fixed for the purposes of viva-voce (presuming
that they were so fixed).
15. As
regards Barpeta District, the learned Single Judge found that the register of
candidates of Barpeta was maintained only from the stage of completion of the
elimination race wherein 5540 candidates had qualified.
All of
them were allowed to take the physical test. The learned Judge then deduced
that 5540 candidates were interviewed in a span of 9 days. He, therefore, came
to the conclusion that the average number of candidates on each day was much
more than the benchmark of 250 which he had fixed. He also recorded that one
Minister had made written request in respect of 43 candidates but out of them
only 19 were selected. However, the learned Judge did remark that the marks
secured by most of the aforementioned 19 candidates did not reflect award of
any abnormally high marks in the viva voce test. The learned Judge then
recorded:
".yet
having regard to the very fragile nature of the viva voce segment of the
selection on account of the participation of over 5500 candidates therein, I am
of the view that the just and proper conclusion that must be reached in the
totality of the facts of the case is that the selections held in Barpeta
District should receive this Court's interference. Accordingly, the said
selections are set aside."
16. As
regards Dhubri District, the learned Single Judge noted that as many as 117
posts were advertised and 3722 candidates competed for the same after being
qualified for the physical test. The learned Judge then noted, as per the
report of the Amicus Curaie, that all the selected candidates had got high
marks in viva voce ranging between 30 to 41 out of 50 marks. The learned Judge
did not find fault with the application forms of the selected candidates which
were duly initialed by the concerned officers nor did he find fault with the
procedure adopted. However, the learned Judge noted that the number of
candidates who were interviewed during 9 days was a "high disturbing
factor" as also the award of high marks in the viva voce to the selected
candidates which has an isolated feature by itself which could assume
significance. It is only on this material that the whole selection was set
aside.
17.
Lastly in respect of Sonitpur District, the learned Judge found that for 414
posts advertised, 12,433 candidates had applied, out of which 5399 candidates
were found qualified for the viva voce and all of them were also interviewed.
According to the learned Judge this by itself would be a deciding factor
considering that over 500 candidates had been interviewed per day. The learned
Judge did note on the basis of the report of the amicus curaie that no
discrepancy in award of marks in the physical test and award of uniform marks
in the viva-voce vis-`-vis written test was noticed. Here, however, the learned
Judge chose to disagree with the views expressed by the amicus curaie and very
interestingly observed:
"Though
the marks obtained by the candidates in the different segments of the physical
test have been noted in a tabulation/ compilation sheet, the entries therein
are not supported by the contemporaneous records. There are instances of a
large number of candidates who had fared well in the physical test but have
scored low marks in the interview/viva voce."
The
learned Judge also gave example of two selected candidates being under-age. It
is on this basis that the selection of Sonitpur District was set aside.
18.
When the matters reached the Division Bench, the Division Bench firstly noted
the findings of the learned Single Judge on the general issues.
It
also noted that representative notice was issued inviting the affected parties,
i.e., selected candidates to the proceedings before the learned Single Judge.
The Division Bench also noted the method of random scrutiny of the selections
in 26 Districts/Battalions by the Scrutiny Committee.
19. It
was argued generally before the Division Bench that the learned Single Judge
could not have set aside the selections on the basis of the reports of the
Scrutiny Committee which were, admittedly, the sample and partial scrutiny.
Even during the arguments before the Division Bench no opportunity was given to
the counsel for the appellants to examine the materials on record and also to
take the copies thereof enabling them to support the selection of the
candidates. Regarding the aspect of non joining of proper parties, i.e.
selected candidates to the writ petition, the Division Bench noted the general
notice directed to be issued through publication by the Single Judge by his
order dated 6.10.2005. The Division Bench further noted in para 18 that the
notice so published was vague as it did not mention the case numbers,
districts, selection centres, etc. It also noted the arguments of the
appellants that though applications were made by the selected candidates for impleadment
in the related writ proceedings and though a direction was prayed for supply of
copies of the writ petition, the learned Single Judge did not pass any order
and the copies of the writ petition became available to the appellants only on
23.11.2005 and they had to file their Reply Affidavits even without knowing the
contents of the writ petition. The Division Bench also noted the further
arguments that the writ petitions themselves were vaguely drafted. It was,
therefore, argued that the selected candidates were denied a fair and reasonable
opportunity of projecting their cases resulting in violation of principles of
natural justice.
It was
pointed out that even at the time of fixing the writ petition for hearing on 8.11.2005,
the selected candidates were, admittedly, not impleaded as parties and the
proceedings, therefore, suffered from serious procedural lapse. It was further
argued that the learned Single Judge also fell in error in directing the
selected candidates to file the appropriate affidavits even without either impleading
them or ensuring that the copies of the writ petitions were served on them. It
was also pointed out that the reports prepared by Amicus Curaie and the three
judicial officers on the basis of the sample scrutiny made by them were not
made available to the selected candidates and, therefore, the learned Single
Judge erred entirely in relying on those Scrutiny Reports.
20.
Per contra, the submissions made on behalf of the appellants were opposed by
the writ petitioners and it was reiterated that no prejudice was caused to the
selected candidates and no such grievance was made before the learned Single
Judge. It was reiterated that the selection of any particular individual or
individuals was not impugned but the whole selection process was found faulty.
21. The
Division Bench noted its own earlier order dated 4.10.2005 whereby the earlier
appeals were disposed of and a further direction was given that the parties
were at liberty to take recourse to provisions of Order 1 Rule 10 as also the
other provisions in the CPC and the issue was left open to the learned Single
Judge to direct publication of notice in newspapers so that the interested
parties could appear in the proceedings if they so desire. The Division Bench
in para 27 of its judgment noted about such notice having been published in the
leading newspapers of Assam as also the order passed by the learned Single
Judge to publish the list of selected candidates on or before 19.10.2005. It
also noted that on 8.11.2005, the learned Single Judge had found that in the
notice of proceedings published in the issue dated 19.10.2005 of the local
daily Assam Tribune, the date of hearing had not been mentioned and, therefore,
the date of hearing was directed to be published in daily "Asomiya Pratidin"
to be 17.11.2005. The Division Bench also noted the subsequent orders passed by
the learned Single Judge allowing the impleadment which began after the second
week of November, 2005 and continued upto the last week of November, 2005
during which the hearing also took place and the judgment ultimately came to be
delivered on 12.12.2005. The Division Bench further held that all the selected
candidates had been duly heard on relevant aspects of controversy and that they
had expressed no grievance regarding the non impleadment or delayed impleadment
or refusal of copies though prayed and applied for and as such they had waived
their objections. In para 30 it was argued that:
"They
obviously chanced favourable decision without any reservation in this regard
and thus had waived any objection on the above counts. On this consideration
alone their present turn around apparently lacks bonafide. In view of their
omission to point out to the learned Single Judge the factum of non receipt of
the copies of the writ petition and non impleadment in the proceedings during
the pendency thereof, they are now estopped from raising these pleas of this
point of time.".
22.
The Division Bench in para 32 observed that no prayer was made by any parties
seeking a copy of the reports of the Amicus curaie or of the judicial officers
assisting the court in the inspection of the records. It, therefore, recorded a
finding to the effect that:
".we
do not feel persuaded to sustain the cavil of the appellants bearing on denial
of opportunity of effective and meaningful participation in the proceedings to
their prejudice."
In paras
35 to 43 of its Judgment, the Division Bench took note of the following cases:
i)
General Medical Council v. Spackman [1943 AC 627]
ii) Taylor v. National Union of Seaman [(1967)
1 WLR 532]
iii) Garland v. British Rail Engineering Ltd.
[(1969) 1 WLP 1041,
iv)
Walter Annamunthodo vs. Oilfields Workers' Trade Union [1961 SE 945]
v)
Chief Constable of the North Wales Police vs. Evans [(1982) 1 WLR 1155,
vi) B.
Surinder Singh Kanda v. Government of the Federation of Malaya [(1962) AC 322]
vii) Hadmor
Products Ltd. & Ors. v. Hamilton and another [(1983) AC 191]
viii) Canara
Bank and others v. Debasis Das and others [(2003) 4 SCC 557].
All
the above decisions were distinguished in para 44 on the ground that
foundational facts were different. The Division Bench held:
"The
requirement of adherence to the exigency of the fair procedure notwithstanding
the attendant facts do not buttress the appellants plea based thereon. Additionally,
while in those cases, the adjudicative process pertained to issues concerning
individuals, the scrutiny in the instant case relates to a mammoth exercise of
appointment to 5486 posts in public service."
It
ultimately held that the deficiency in the pleadings on the grounds of
challenge, if any, in the writ petitions in the above premise cannot be
construed to be fatal. It further held that by the same analogy in view of the
unqualified participation of the selected candidates in the proceedings, their
plea of non impleadment therein and denial of the copies of the writ petitions
does not merit acceptance. The Division Bench further condoned the non passing
of the individual orders on the impleadment applications and recorded its
findings in para 46 to the following effect:
"On
an overall consideration of the emerging facts and the documents on record, we
are of the unhesitant opinion that the procedure adopted by the learned Single
Judge in conducting the proceedings is not in derogation of the established
principle of natural justice and fairness in judicial determination. This plea,
therefore, fails."
The
Division Bench then referred to the exercise undertaken between 21.9.2006 and
16.10.2006 pertaining to the examination of the records by the Bench in
presence of the counsel for the parties. It further noted that no objections
were raised by the counsel. The Division Bench ultimately held in para 48 as
under:
"In
the above premise, the learned counsel for the parties having been afforded all
reasonable opportunities of consulting the records and highlighting grievances,
if any on the issues of impleadment, non supply of copies of the writ petition
etc., in course of the hearing of the appeals and they having chosen not to
avail the same, the plea of want of fairness is of no consequence on this
ground as well."
23. In
para 52 the Appellate Court raised the question as to what should be the ideal
number of candidates who could reasonably and practically be interviewed on a
day. The Division Bench observed that this question would have to be considered
in the context of large number of candidates as high as more than 2,000 on a
single day vis-`-vis the candidates within the benchmark adopted by the learned
Single Judge (250 per day). State's affidavit was referred to and it was noted
in para 53 that even therefrom it is apparent that at best 8 hours on a day
could be utilized for the interview.
Though
it was claimed by the State that the interviews at times were taken spending 8
to 15 hours a day. It was held that if 15 hours are spent in a day, it would
not be reasonably practicable and that by itself may lead to the inference of a
farcical selection. After extensively quoting from the circular letter No.3 Police
dated 3rd May, 1971 issued by IGP, Assam regarding the policy with regard to
recruitment of the rank of Constables, the Division Bench observed in para 56
that "while good physique and bearing cannot be sacrificed, at the same
time, the mental caliber for recruitment to the constabulary cannot be
compromised". The Division Bench then endorsed:
"Although
an argument was advanced that provision for 50% marks for interview was in the
higher side giving scope for maneuvering the selection, but the learned Single
Judge on an overall consideration of the matter has come to the conclusion that
prescription of 50% marks for the interview is acceptable."
In the
same para it went on to observe:
"To
judge a candidate on his mental faculties, alertness, general knowledge,
general bearing and knowledge of language, etc., some amount of interaction
with the candidate by the members of the Selection Board will be always
required and it cannot be an affair of some moments and, therefore, there was a
necessity to fix the number probable candidates who could be interviewed
effectively in a day within the hours indicated in the affidavits which hours
also could not be at a stretch but had to be with intervals of tea breaks,
lunch breaks, etc."
The
Division Bench then proceeded to decide as to how many candidates could be
interviewed in a day. The Division Bench then took stock of the reported
decision in Satpal & Ors. v. State of Haryana & Ors. [(1995) Suppl. 1
SCC 206], Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] argued on
behalf of the writ petitioners as also noted the law laid down in Sardara Singh
v. State of Punjab [(1991) 4 SCC 555] and came to the conclusion on the basis
of the law laid down in the above mentioned cases that the claim of three
minutes per candidate, as was accepted in Sardara Singh's case was not feasible
and in the present case minimum five minutes will be required for the realistic
appraisal of the candidate. If that was done then the interview of 300
candidates would require 15 hours. Ultimately, the Division Bench recorded a
finding that the learned Single Judge had correctly fixed benchmark of 250
candidates to be interviewed in a day and at times it could even be stretched
to 300 candidates a day. It was on this basis, the Division Bench then
proceeded to examine the individual District and found fault with the selection
process in Dhubri, Barpeta and Sonitpur Districts on the ground that the
candidates interviewed were more than the benchmark fixed and also noted other
alleged irregularities in the matter and proceeded to set aside the selection
in those three Districts.
24. We
have already indicated above that we are concerned with the above mentioned
three Districts only. We will, therefore, consider the selection process in
these three Districts in the light of the observations made by the learned
Single Judge as also the Division Bench in the appeals. But before that we must
take stock of the arguments by the learned counsel on behalf of the appellant
as also the arguments by the State which though has not filed appeal, has
chosen to support the appellants for the obvious reasons as also the other
concerned parties.
25. We
have deliberately referred to the findings of the learned Single Judge as well
as the Division Bench as we are convinced from those findings that the only
ground on which the selections were set aside was the factual situation that
the number of candidates interviewed were enormous and as such the personal
interview and more particularly the viva-voce was a farce, having been
completed only by way of a formality due to the shortage of time and hence the
selections made on the basis of farcical viva voce could not answer the test of
objectivity and reasonableness.
26.
However, since the courts below referred to the other defects in the selection
process, we would take a stock of those findings. It was firstly urged by way
of a complaint against these interviews that the dates were changed and that
was done in order to meet the political goals on the part of some leaders. We
do not think that this complaint was justified. Firstly there were no proper
pleadings with the necessary details before the learned Single Judge. Secondly
how the postponements affected the selection process is nowhere displayed and
further which political leaders were responsible for such postponements of the
interview dates had also not been pleaded. On the other hand it was found from
the records that the postponement were on account of Asian Car Rally, Kali Puja,
Diwali and Id festivals. If that was so, we do not find any reason to hold
against the selection process and indeed though we find some murmur in the
judgments appealed against, we do not see any definite finding that such
postponements affected the selection process. The very fact that there was a
huge turn out in each District suggests the hollowness of the claim that the
selection process was affected because of the postponements.
We,
therefore, do not think that anything was wrong in postponing the interview
dates. Similarly, we are also not impressed with the complaint that the
District-wise restrictions were removed by the Government by its letter dated
16.11.2004 apart from the fact that both the courts have not commented on this
aspect adversely against the selection process. We are of the opinion that,
that by itself cannot be a reason to find fault with the selection process,
again on the ground that the petitioners were not able to show as to what
prejudice was caused because of the removal of such step taken by the
Government on 16.11.2004. On the other hand we are of the clear opinion that
the Government had made the selection process broader by removing the
District-wise restrictions. As regards, the complaint that 50 marks were
allotted for the personal interview or viva voce, the learned Single Judge as
well as the Division Bench have found that in the peculiar circumstances it was
of no consequence. We also endorse this view as no arguments were addressed on
this point before us.
Therefore,
even that complaint has to go. In the earlier part of this judgment we have
already noted that these 50 marks were also distributed on as many as six
factors and each factor had separate marks. The oral test, after the
distribution of the marks over the factors like educational qualifications,
smartness, general ambience in reading, writing, extra qualifications,
proficiency in sports and martial arts, is only left with 20 marks which, in
our opinion, is quite reasonable. We do not, therefore, find anything wrong on
account of the allotment of 50 marks for viva voce. This is apart from the fact
that the unsuccessful candidates, after having taken part in the interview
process could not turn back and call names to the system.
27. We
are, therefore, left with only one major contention regarding the enormousness
of the number of candidates interviewed and the possible inability on the part
of the interview board to complete the interviews in a proper manner. We would,
therefore, proceed to consider this aspect in detail.
28.
The basis of the contention regarding this factor made by the writ petitioners
was the paucity of time. Based on the factors like the available time, the
general requirements for assessing an individual candidate for the post of
Constable, the number of persons available for holding the interviews, the leaned
Single Judge had come to a finding that every Board on one day could, at the
most, interview 250 candidates. The Division Bench also seems to have endorsed
this view. We have very carefully examined the contentions raised by the
appellant herein and also the material provided by the State through its
counter affidavits as also the plea raised by the officers who actually held
the interviews in respect of the concerned three Districts of Dhubri, Barpeta
and Sonitpur. But before we go into the exercise of considering the situation
in these three Districts individually, we must consider the benchmark fixed by
the learned Judge at 250 candidates per day. We are afraid we cannot uphold
that finding.
Learned
Single Judge as well as the Division Bench seem to have proceeded more on
imagination than the reality. Such a benchmark could not have been fixed
generally and only because that benchmark was allegedly breached, the selection
could not have been found fault with in a mechanical and mathematical manner.
Instead of testing the matter on the basis of the ground realities for each
District on the basis of material made available by the State, a mechanical
approach, in our opinion, could not have been taken by the High Court.
29.
The Courts below seems to have relied upon Satpal's case (supra). That was a
case regarding the selection of Patwaris who obviously have a entirely
different and more onerous duties than those of the constables in police. A Patwari
is a basic Revenue Officer in the village and has to maintain the revenue
records. In para 6 this Court observed that:
"Even
if one were to assume that the committee devoted as many as 12 hours i.e. from
9.00 a.m. to 9.00 p.m. on a single day for interviewing candidates it would not
be able to devote more than two minutes' time per candidate."
It was
on the above basis that it was found that it was impossible for the authorities
to conduct the interviews of as many as 400-600 candidates in a single day. The
Court also observed, considering the shortest time available to interview,
that:
"It
is difficult to hold that the interviews were meaningful and purposive to
enable proper assessment of the knowledge and suitability of each candidate for
the post".
In our
opinion these observations would be most apposite in respect of the selection
of a Patwari who is required to have the knowledge regarding the records, etc.
Such is certainly not the requirement for the constables.
30. In
Ashok Kumar Yadav's case (supra) this question did not come.
That
was a case more particularly of bias. Aspersions on character, integrity and
competence of Chairman and members of State Public Service Commission were made
in that case. At any rate the interviews held in that case were for the
selection to the Judicial Service and, therefore, the nature of the interview
was entirely different.
31,
However, in Sardara Singh's case (supra), this Court specifically observed in para
6:
"The
selection is for the Patwaris in the class III service.
The
ratio in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] has no
application to the facts in the case.
Therein
the selection was to the Class I service of the State Service and sufficient
time was required to interview each candidate. In this case, on calculation, we
found that on an average three minutes were spent for each candidate for
selection. Rule 7 of the Rules provides the qualifications, namely, pass in the
Matriculation or Higher Secondary Examination; knowledge in Hindi and Punjabi upto
the Middle Standard and good knowledge of rural economy and culture.
The
educational qualifications are apparent from record and need no interview in
this regard. It could be seen that candidates normally hailing from rural
backgrounds had presumptively good knowledge of rural economy and culture.
Therefore,
there is no need for special emphasis to ascertain their knowledge of the rural
economy or culture. Under those circumstances much time need not be spent on
each candidate for selection except asking some questions on general knowledge and
aptitude for work as Patwari etc."
The
observations are extremely telling and need no further elaboration. In the
present case the qualifications were known. The physical standards of each
candidate were very much there before the interviewing board and, therefore, in
our opinion, there was no necessity to test the knowledge of maintenance of
revenue records, rural economy and culture as was required for the post of Patwari.
The merits of the candidates were also recorded regarding their physical efficiency.
Therefore, even less than three minutes time was enough for each candidate. We
would also have to give due credit to the expertise of Selection Committee.
32.
The question of large number of candidates appearing for the selection process
again came up before this Court in Joginder Singh and others v. Roshan Lal and
others [(2002) 9 SCC 765]. A complaint was made in this case that 323
candidates appeared for the test in two days and on that basis a select list
was prepared by the Departmental Promotion Committee. The High Court called
this selection process as a farce on the ground that fair chance was never
given to the candidates to show their worth. The Court observed in para 5 as
under:
"On
the facts on record we see no justification for the High Court to have come to
this conclusion. The High Court in exercise of its jurisdiction under Article
226 of the Constitution is not supposed to act as an Appellate Authority over
the decision of the Departmental Selection Committee. If the Committee has been
properly constituted, as in this case, and the post is advertised and a
selection process known to law which is fair to all, is followed then the High
Court could have no jurisdiction to go into a question whether the Department
Selection Committee conducted the test properly or not when there is no
allegation of malafides or bias against any member of the Committee. Merely
because there were a large number of candidates who appeared on two days,
cannot ipso facto lead to the conclusion that the process of selection was a
farce and fair chance was not given. Normally experienced persons are appointed
as members of the Selection Committee and how much time should be spent with a
candidate would vary from person to person. Merely because only two days were spent
in conducting the interviews for the selection of Class IV posts cannot lead to
the conclusion that the process of selection was not proper."
33. To
sum up, these were the interviews for the post of Constables and the minimum
educational standard was prescribed as 7th class pass.
There
were no requirements of testing the administrative or management capacity of
the candidates and/or any other quality which is required for the higher posts.
All that was necessary was firstly to see their physical fitness in terms of
physical endurance, their smartness in appearance and further to test their
intelligence level as required for the post of constable including their
general knowledge. We cannot ignore that thousands of candidates had turned up
and what we find from the guidelines was, firstly these candidates had to fulfil
physical standards in terms of height, etc., as also the minimum educational
qualification. Obviously all the candidates could not have had those physical
standards. It is apparent from the records that the task of conducting
measurement for fixing the physical standards was distributed on all the centres
amongst number of other helping staff. Once they crossed this barrier of
physical standards and minimum educational qualification as also the race of
1.60 kms. in the case of men and 0.80 in the case of women, they were to
proceed for the further physical tests.
This
exercise, in our opinion, was not as time consuming and could have been done
collectively also for the simple reason that every candidate was not asked to
run the race individually. That would certainly be a team event where several
candidates could run at the same time in group. To complete the race in a
particular time could not, in our opinion, require hours together. The subsequent
physical test of high jump, long jump and sprint of 100 mtrs., etc., would be
restricted only to those candidates who had successfully met their physical
standards and educational qualifications and their number would definitely
reduce. The further filtration for the viva voce test was more substantial as
the number of candidates who could pass the exacting standards in high jump,
long jump and the sprint could not have been more. It is at this stage that the
remaining candidates were interviewed for their viva voce. This is apart from
the fact that the courts below did not have any tangible evidence regarding the
interviews being farcical except the self-serving statement made by the
unsuccessful candidates in the writ petitions. The learned Judges even did not
have the reasons for which the unsuccessful candidates were rejected. We,
therefore, do not see any reason as to how a concrete finding could have been
given that the selection board could interview only 250 candidates per day and
not more.
34.
Once this barrier is cleared, the mechanical test adopted by the learned Single
Judge and the Division Bench must go and the matters would have to be decided
on the basis of the ground realities as presented before us.
DHUBRI
DISTRICT
35.
Our attention was invited by the learned Senior Counsel Shri Rajiv Dutt to the
counter affidavit filed by the State in respect of the selections made in
District Dhubri. The counter is supported by the affidavit of Shri Joydip Shukla,
Extra Assistant Commissioner which suggests that a Board was constituted under
the Chairmanship of Shri P.K. Dutta, Superintendent of Police, Dhubri, Shri N. Borah,
APS, Asstt. Commandant 20th IR Battalion, Panbari and Dr.N. Amin, Senior
Medical & Health Officer, Dhubri.
They
were to execute the task as per the Notification No.FB/1/98/2004/1 dated
21.8.2004. The said notification dated 21.8.2004 is on record. The affidavit
further suggests that a meeting was held on 20th October, 2004 in connection with the Recruitment Rally for the post of
constables wherein it was decided to constitute sub-committees and accordingly
the sub- committees were constituted including interview board for the post of
viva voce test. The affidavit goes on to say that since there were large number
of candidates, it was impossible for a single interview board to complete the
interviews and, therefore, four tables for interviewing the candidates were
arranged and each table was to be headed by a Gazetted Officer who was
explained the modalities of the interview. The names of the four Gazetted
Officers, heading the interview panel on each table, were
(i) Shri
P.K. Dutta, APS, Superintendent of Police, Dhubri, Chairman of the Board;
(ii) Shri
N. Borah, Asstt. Commandant, 20th IR Battalion, Panari, Member;
(iii) Shri
A.K. Bose, APS, Dy. Superintendent of Police (DSB), Dhubri;
(iv) Shri
R.C. Medhi, APS, Asstt. Commandant, 20th I.R. Battalion, Panbari.
The
affidavit also goes on to say that a board which has already been referred to
earlier for final selections was also constituted consisting of Shri P.K. Dutta,
Shri N. Borah and Dr.N. Amin. It is suggested that the guidelines dated
2.9.2004 were issued prescribing the procedure to be followed during the
Recruitment Rally which was issued by the State- respondents and it is further
asserted that the said guidelines were strictly adhered to. The affidavit
further goes on to suggest that the process of interview was started at 8.00 a.m. and continued till late in the day.
However,
the viva voce tests slated for 4th and 5th December, were continued on the
following days, i.e., on 5th and 6th December, 20004 and the number of
candidates selected for viva voce test were barely 601 on 4th December and 1068
for 5th December. It is asserted that the candidates were interviewed by each
table of Interview Board. It is then pointed out that after conducting the
interviews for 3722 candidates for a period of nine days, ultimately 178
candidates were selected for appointment out of which 85 vacancies were for the
post of constable in the District of Dhubri and 93 in the 20th I.R. Battalion
and the final selection list was affixed on the Notice Board on 3.2.2005. It is
in this manner, that the interviews were held in Dhubri. It is seen from the
minutes of the meeting dated 20th October, 2004 that it was attended by as many
as 23 personnel and in that the whole procedure for holding the interviews was
finalized by creating a Reception Counter, then holding the elimination race,
then the documentation, the physical test and ultimately the viva voce. The
detailed chart suggests that as many as 22 Reporting Centres were created for
which different officers were appointed; two constables were to act as the
escorts of the candidates, while as many as 26 persons were engaged for holding
the elimination race; for documentation as many as 93 personnel were named even
for the subsequent events of physical test, long jump six personnel were
appointed, for high jump 9 personnel were appointed and for 100 meters sprint
further 9 personnel were appointed. Ultimately for viva voce 2 personnel were
named being Shri P.K. Datta and Shri A.K. Bose, both APS Officers. Not only this,
the standard marks to be given for the physical tests and even the basic
minimum standard accepted is also seen from Annexures A and B from the chart.
This suggests the systematic way in which the whole interview process went on
in Dhubri.
36.
Learned Single Judge in his judgment has observed that as per the report of the
Amicus Curaie the selected candidates got higher marks in viva voce ranging
between 30 to 41 marks. In our opinion this has hardly any effect and merely
because the selected candidates got the higher marks ranging between 30 to 41
marks that by itself could be no reason to reject the selection. We have
extensively referred to the comments made by the learned Single Judge in the
earlier part of the judgment where the learned Judge has in fact recorded his
satisfaction for the printed charts and more particularly about their
authenticity. The learned Judge had also expressed his satisfaction with the
procedure adopted. There is hardly any reason given by the learned Single
Judger excepting that the benchmark of 250 candidates had already been crossed.
37.
The treatment given by the Division Bench is no different. The Division Bench
has also gone by the mechanical test of benchmark of 250 candidates. The
Division Bench seems to have taken an exception to the proceedings dated
4.12.2004 and 5.12.2004. That is by far the only reason given by the Division
Bench for upholding the finding of the Single Judge.
No
court has, however, considered the ground realities which we have already shown
as per the counter affidavit which has remained uncontroverted before us. We
are, therefore, convinced that the only reason given by the courts below could
not be said to be a deciding factor for setting aside the selection.
BARPETA
DISTRICT
38.
The story regarding Barpeta District does not appear to be any different. Shri Dholakia,
Senior Counsel took us through the counter affidavit filed on behalf of the
State wherefrom it is apparent that a Selection Board was constituted for Barpeta
District consisting of one Shri B.B. Chetry, APS, the then Superintendent of
Police, Barpeta District as its Chairman and Shri D. Upadhaya, APS, the then
Commandant, 4th APTF Bn., Barpet District as its Member. The affidavit further
goes on to suggest the names of the members of the sub-committees for
conducting the elimination race and for other events. In so far as elimination
race is concerned, two police personnel, namely, ABSI Pramod Das and Hav. Clerk
Altaf Hussain were appointed. As for documentation and measurement a team of 13
personnel was named so also for 100 meters race, long jump and high jump, there
appears to be a team of two personnel each. It is then asserted that in all
5540 candidates appeared between 3rd December to 8th December and interviews
were started at 6.30 a.m. and lasted till 8.30 p.m. giving clean 14 hours to
the Selection Committee. It is pointed out that out of 5540 candidates 1815
candidates were selected on being eligible/physically fit to appear for viva
voce. It is then pointed out that candidates who were left out of the viva voce
test due to shortage of time on the date of selection were called on 9.12.2004
and 10.12.2004 also. It is asserted that this fact was reflected on the Police
Radiogram dated 5.12.2004 and 10.12.2004 and only the selected candidates were
called to appear for personal interview on the dates fixed for that purpose.
These fixed dates were on 3rd, 4th, 5th, 6th and 7th December, 2004 and as has
already been submitted 9th and 10th December, 2004. It is very frankly
contended in the counter affidavit that those who were left out due to paucity
of time, were called on 9th and 10th December, 2004. The counter also goes on
to explain that the interview board was alive to the considerations required
for selection for the post of constables and as such it was sufficient to test
the candidates on the basis of their physical capability and agility. It is then
contended that in viva voce random questions were put to the candidates
considering the time constraints to ascertain their minimum intelligence level
which a constable is required to possess. The copies of the documents like the
Memo dated 2.12.2004, Memo dated 3.9.2005, Police Radiograms dated 5.12.2004
and 10.12.2004 are annexed to the counter affidavit which go on to suggest the
genuineness of the claim by the State Government supporting the selections.
39. Shri
Dholakia painstakingly took us through the judgments of the learned Single
Judge as well as the Division Bench. The learned Single Judge seems to have
gone by the simple mathematical rule of dividing 5540 candidates by 9 since the
interview process lasted for 9 days. He seems to have relied on the rule of
average. There was one peculiar finding that as per the report of the amicus curaie
a complaint was made that some candidates were selected at the written request
of a Minister.
The
amicus curaie had initially reported that the number of such candidates is
three out of total 210 candidates selected. At the hearing, however, the amicus
curaie claimed that the said written request was in respect of 43 candidates
out of whom 19 candidates have been selected. The learned Single Judge has,
however, candidly held that the marks given by the 19 candidates do not reflect
award of any abnormally high marks in the viva voce test. All that the learned
Judge has recorded is that having regard to the "fragile nature of the
selection" it would be just and proper conclusion to set aside the
selections made in Barpeta. We are not at all satisfied with this kind of
general and casual remarks. This is apart from the fact that there is nothing
to suggest that in reality any recommendations were made.
40.
The story of the Division Bench is again no different. The Division Bench has
given the daily break up of the candidates interviewed on each day and without
making any distinction, has proceeded to hold that merely because the number of
candidates exceeded on particular days, the said "benchmark", the
selection was bad. We are not convinced with this.
SONITPUR
DISTRICT
41. As
regards Sonitpur District also the counter suggests that there was a Selection
Board consisting of Shri Nitul Gogoi, APS, Superintendent of Police, Sonitpur, Tezpur
as its Chairman, Shri Dwijendra Nath Sarma, APS Asst. Commandant, 12th AP Bn., Jamugurihat
as its Member and Dr.(Mrs.) Dipti Baruah, Senior Medical & Health Officer, Biswanath
Chariali PHC as its Member. As in the other counters, the minutes of the
pre-selection meeting in this case held on 30th November, 2004 have been
referred to.
Figures
which are given are that out of 12,433 candidates 4319 were only found to be
qualified and appeared for the interview. It is pointed out that on 3rd
December, 2004 out of 1365 candidates 489 candidates only qualified and
appeared for viva voce and medical test. The number given on the other dates
are that on 4th December 757 out of 1676 candidates; on 5th December 558 out of
1602 candidates; on 6th December 602 out of 1892 candidates; on 7th December
473 out of 1081 candidates; on 8th December 1175 out of 2169 candidates; on 9th
December 536 out of 1066 candidates ; on 10th December 709 out of 1192
candidates and on 11th December 91 out of 391 candidates came for the
interviews after passing preliminary rounds. A clear cut assertion is made that
the candidates appearing for viva voce were only those who had passed the
physical test.
It is
pointed out further that more credence was given to the physical fitness and
the agility of the candidates since that was the main essence to discharge the
duties of a constable. Again it is asserted that random questions were put to
the candidates in viva voce so as to ascertain their minimum intelligence level.
The documents explaining the counter seem to support the said facts. Learned
counsel heavily relied on Annexure R-3, the Minutes of the meeting dated
30.11.2004 as also the Minutes of the meeting held on 3.2.2005.
42.
Learned Single Judge has hardly given any reasons and has recorded that a large
number of candidates who were failed in physical test were being given low
marks in the interview. Two examples have been given of one Mridul Bora and Diganta
Das who were under-age but were selected. We have nothing to say about these
two selections and if they were not within the proper age limit, the learned
Judge was undoubtedly right in setting aside their selection. But that could
not be a reason by itself to set aside the whole selection of more than 400 candidates.
There is absolutely no reference to any ground facts and the learned Judge
seems to have relied wholly on the views expressed by the Amicus Curaie. A
curious statement has been made to the following effect:
"Though
the marks obtained by the candidates in the different segments of the physical
test have been noted in a tabulation/compilation sheet, the entries therein are
not supported by the contemporaneous records."
We
wonder as to what such contemporaneous record could be. Anyway, the only reason
appears to have been weighed with the learned Single Judge was the crossing of
the benchmark of 250 candidates.
43.
The treatment of the Division Bench is identical. The Division Bench has found
out a pattern in selection and commented that the candidates who secured higher
marks in the physical test, i.e., above 40 and upto 46, were awarded abnormally
low marks i.e., marks ranging from 7 to 20 and thereby these candidates were
ousted from consideration. The marks were found to be over-written/interpolated
in respect of all the candidates and not a single instance was found free from
such impairment. The Division Bench has given few examples in para 153 where
the marks were substantially changed and reduced to reject those candidates.
Some further defects were found that the candidates were not awarded marks for
100 meter race which had been completed within the permissible limit.
Two
such examples were cited by the Division Bench. So also it is commented that
some candidates were not given proper marks and were not allowed to cross the
benchmark. It is on this basis that the selection has been set aside, of course
again considering the crossing of the benchmark of 250 candidates a day. In our
opinion the exercise undertaken of scrutinizing the marks allotted to each and
every candidate was unnecessary and unwarranted since in the petition no such
assertions were made.
44. It
is settled law that in such writ petitions a roving inquiry on the factual
aspect is not permissible. The High Court not only engaged itself into a non
permitted fact finding exercise but also went on to rely on the findings of the
Amicus Curaie, or as the case may be, the Scrutiny Team, which in our opinion
was inappropriate. While testing the fairness of the selection process wherein
thousands of candidates were involved, the High Court should have been slow in
relying upon such microscopic findings. It was not for the High Court to place
itself into a position of a fact finding commission, that too, more
particularly at the instance of those petitioners who were unsuccessful
candidates. The High Court should, therefore, have restricted itself to the
pleadings in the writ petition and the say of the respondents. Unfortunately,
the High Court took it upon itself the task of substituting itself for the
Selection Committee and also in the process assumed the role of an Appellate
Tribunal which was, in our opinion, not proper. Thus, the High Court converted
this writ petition into a public interest litigation without any justification.
45. It
is also a settled position that the unsuccessful candidates cannot turn back
and assail the selection process. There are of course the exceptions carved out
by this Court to this general rule. This position was reiterated by this Court
in its latest judgment in Union of India & Ors. v. S. Vinod Kumar & Ors
[(2007) 8 SCC 100] where one of us (Sinha, J.) was a party. This was a case
where different cut off marks were fixed for the unreserved candidates and the
Scheduled Caste and Scheduled Tribes candidates. This Court in para 10 of its
judgment endorsed the action and recorded a finding that there was a power in
the employer to fix the cut off marks which power was neither denied nor
disputed and further that the cut off marks were fixed on a rationale basis
and, therefore, no exception could be taken. The Court also referred to the
judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla & Ors. [(1986) Supp.
SCC 285] where it has been held specifically that when a candidate appears in
the examination without protest and subsequently found to be not successful in
the examination, the question of entertaining the petition challenging such
examination would not arise. The Court further made observations in para 34 of
the judgment to the effect:
"There
is thus no doubt that while question of any estoppel by conduct would not arise
in the contextual facts but the law seem to be well settled that in the event a
candidate appears at the interview and participates therein, only because the
result of the interview is not 'palatable' to him, he cannot turn round and
subsequently contend that the process of interview was unfair or there was some
lacuna in the process."
In para
20 this Court further observed that there are certain exceptions to the
aforementioned rule. However, the court did not go into those exceptions since
the same were not material.
46. In
our opinion the first basic thing for such a selection process would be the
lack of bona fides or, as the case may be, malafide exercise of powers by those
who were at the helm of selection process. Both the courts below have not
recorded any finding that they found any malafides on the part of any of the
State officials who headed the interviews. On the other hand the tenor of the
judgments show that the whole process did not suffer from malafides, lack of bonafides,
bias or political interference. In Union of India & Others vs. Bikash Kumar
[(2006) 8 SCC 192] this Court observed in para 14 thus:
"When
a Selection Committee recommends selection of a person, the same cannot be
presumed to have been done in a mechanical manner in absence of any allegation
of favouritism or bias . A presumption arises in regard to the correctness of
the official act. The party who makes any allegation of bias or favouritism is
required to prove the same. In the instant case, no such allegation was made.
The selection process was not found to be vitiated. No illegality was brought
to our notice"
47.
The learned Single Judge relying upon the decision in Raj Kumar & Others v.
Shakti Raj & Others [(1997) 9 SCC 527] seems to have found an exception to
this Rule and has more particularly relied on the observation made in para 16
to the following effect:
"But
in his case, the Government have committed glaring illegalities in the procedure
to get the candidates for examination under the 1955 Rules, so also in the
method of selection and exercise of the power in taking out from the purview of
the Board and also conduct of the selection in accordance with the Rules.
Therefore, the principle of estoppel by conduct or acquiescence has no
application to the facts in this case. Thus, we consider that the procedure
offered under the 1955 Rules adopted by the Government or the Committee as well
as the action taken by the Government are not correct in law."
We do
not think that this case is apposite for the present controversy. In the
reported decision the court found a clear cut breach of 1955 Rules. It also
found that the names, though were required to be called from the Employment
Exchange, were not so called. The Court also found fault with the procedure
involved. We are afraid such is not the case in the present situation. No
deviation from the rules or no inherent defect in the selection process which
would render the whole selection illegal have either been alleged or proved. We
have already shown in the earlier part of our judgment that there were proper
advertisements issued and reasonable procedure was chalked out in the earlier
meetings held by the authorities, even the guidelines were defined and the
interviews proceeded along those guidelines. A mere expression of doubts only
on the ground of large number of candidates appearing and their not being
objectively and properly tested without any further material, in our opinion,
cannot by itself render the whole selection process illegal.
48.
Similarly we are not satisfied with the course taken in inviting the objections
of the selected candidates who were never bothered to be made parties to the
writ petitions. This Court in All India SC & ST Employees Association and
Another v. A. Arthur Jeen and Others [(2001) 6 SCC 380] has stressed the
necessity of joining the selected candidates as a party in paras 13 and 14 of
its judgment, referring to the reported decisions in Prabodh Verma v. State of
U.P. [(1984) 4 SCC 251] and AMS Sushanth v. M. Sujatha [(2000) 10 SCC 197]. In
these cases this Court has stressed the necessity of the selected candidates
being joined as a party atleast in the representative capacity. The Single
Judge, after realizing the fact that the selected candidates were not joined as
a party, though the selection lists were available to the petitioner, had
merely advertised about the dates of hearing of the petitions and when few of
the selected candidates approached the High Court, they were not even supplied
with the pleadings or the copies of the petitions in time. All this, in our
opinion amounted to denial of an appropriate opportunity to the selected
candidates. All this has been dealt with by both the courts below and particularly
the Division Bench in a very casual manner holding that the decisions relied on
by the appellants were individual cases. Even if they were so, the principles
stated in those cases regarding the natural justice were most apposite
particularly in Canara Bank's case (supra), a reference of which has been made.
In that case this Court held:
"Natural
justice has been variously defined. It is another name for common-sense
justice. Rules of natural justice are not codified canons. But they are
principles ingrained into the conscience of man. Natural justice is the
administration of justice in a common-sense liberal way. Justice is based
substantially on natural ideals and human values. The administration of justice
is to be freed from the narrow and restricted considerations which are usually
associated with a formulated law involving linguistic technicalities and
grammatical niceties. It is the substance of justice which has to determine its
form. Principles of natural justice are those rules which have been laid down
by the courts as being the minimum protection of the rights of the individual
against the arbitrary procedure that may be adopted by a judicial, quasi-
judicial and administrative authority while making an order affecting those
rights. These rules are intended to prevent such authority from doing
injustice."
The
Court further went on to say:
"Concept
of natural justice has undergone a great deal of change in recent years. Rules
of natural justice are not rules embodied always expressly in a statute or in
rules framed thereunder. They may be implied from the nature of the duty to be
performed under a statute. What particular rule of natural justice should be
implied and what its context should be in a given case must depend to a great
extent on the facts and circumstances of that case, the framework of the
statute under which the enquiry is held. The old distinction between a judicial
act and an administrative act has withered away.
The
adherence to principles of natural justice as recognized by all civilized
States is of supreme importance." (Emphasis supplied).
The
Division Bench thus could not have condoned the non supply of copy of the writ
petitions prior to the hearing of the writ petitions before the learned Single
Judge. Similarly, after having noticed that the notice issued by the learned
Single Judge was vague and that the impleaded selected candidates were
constantly crying for the copies of the writ petitions, the Division Bench
could not have simply brushed aside those weighty objections. We also do not
understand the alleged stand taken by the counsel for the selected candidates
before Division Bench regarding their readiness to argue. It is for this reason
that we have extensively quoted the arguments by the counsel in paras 19 to 22
of this judgment where the non supply of copies of petitions was criticised.
49. We
also do not approve of the approach adopted by the learned Single Judge of the
High Court as going all the way into the facts and the microscopic details not
via the pleadings of the parties but on the basis of an unnecessary
investigation. We also disapprove of the logic of relying on the findings
arrived at only on the basis of sample survey. Such selection of large number
of candidates could not have been set aside on the basis of sample survey. No
evidence was available before us as to the proportion of this so-called
"sample survey".
50.
For all the above reasons we hold in favour of the appellants and allow the
appeals, setting aside the judgments of the learned Single Judge as well as the
Division Bench in so far as they pertain to the three District of Dhubri, Barpeta
and Sonitpur.
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