Tridip Kumar Dingal and
Ors Vs. State of West Bengal and Ors. [2008] INSC 1864 (4 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVL APPELLATE JURISDICTION CIVIL APPEAL NOs. OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NOs. 14820-14825 OF 2005 TRIDIP KUMAR DINGAL
& ORS. ... APPELLANTS VERSUS WITH CIVIL APPEAL NOs. OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NOs. 10507-10509 OF 2005 UJJAL MAITY & ANR.
... APPELLANTS VERSUS WITH CIVIL APPEAL NOs. OF 2008 ARISING OUT OF SPECIAL
LEAVE PETITION (CIVIL) NOs. 9531-9532 OF 2005 MUKSUDUR RAHMAN & ORS. ...
APPELLANTS VERSUS 2 C.K. THAKKER, J.
1.
Leave
granted.
2.
The
present appeals have been instituted by the appellants being aggrieved and
dissatisfied with the judgment and order passed by the High Court of Calcutta
on August 11, 2003 in WPSR No. 630 of 2002 and companion matters and an order,
dated January 06, 2005 in CAP No. 1006 of 2004 and cognate petitions.
3.
The
case has a checkered history. In early nineties of the last century, the
Department of Health & Family Welfare, State of West Bengal suffered acute
shortage and non- availability of adequate member of Medical Technologists. In
their absence, laboratory and investigation work in Government Hospitals,
Laboratories, Medical Colleges, Primary Health Centres, Blood Banks, etc. could
not be performed satisfactorily. The Government was worrying as to distress and
agony of patients 3 visiting hospitals and dispensaries. It, therefore, took
an initiative to fill up requisite number of vacancies of Medical Technologists
by taking up the matter with the Employment Exchange. On October 5, 1993, the
Assistant Director of Health Services (Administration) issued a Memo to the
Director of Employment Exchange for sponsoring names of candidates for the post
of Medical Technologist (Laboratory) having requisite qualification of
Madhyamik (Secondary)/Higher Secondary with Science along with a certificate of
Laboratory Technology from a recognized University or Institution. The post was
in the basic pay of Rs.1040-1920 with other admissible allowances.
It was stated that
the candidates were required to work in any District of West Bengal.
4.
Pursuant
to the above Memo and receipt of names from Employment Exchange, a written
examination was held on August 20, 1995. A list of 1070 candidates was
published who had cleared the examination. On August 1, 1996, 4 oral interview
of the candidates who had cleared written examination was taken and provisional
select list was prepared which was published on December 18, 1998. The
empanelment was made on the basis of marks obtained by the candidates at oral
interview.
5.
The
candidates who could not get entry in the select list prepared by the
authorities on the basis of marks obtained at oral interview, approached West
Bengal Administrative Tribunal, Calcutta by instituting Original Application
No. 1023 of 1999. It was contended by them that the authorities had committed
an error of law in totally ignoring the marks obtained by candidates at written
examination and panel was prepared only on the basis of marks obtained by the
candidates at oral interview which was illegal and contrary to law. Preparation
of panel, therefore, was arbitrary, unreasonable and was liable to be set
aside. Interim order was passed by the Tribunal on April 9, 1999 5 granting
liberty to the authorities to make appointment of candidates selected and
empanelled subject to the result in Original Application. Liberty was also
granted to the parties to move the Tribunal for variation, vacation or
modification of the order.
6.
Being
aggrieved by the interim order dated April 9, 1999 granting liberty to the
authorities to make appointment subject to final outcome of the proceedings,
the appellants approached the High Court of Calcutta by filing WPST No. 199 of
1999 contending that they had been treated with discrimination and different
interim orders were passed in different matters. The petition was disposed of
by the High Court by issuing certain directions. The Tribunal was requested to dispose
of the main matter expeditiously preferably before January 15, 2000.
7.
By
judgment and order dated June 30, 2000, main matter was disposed of by the
Tribunal. Merit list which was prepared on the 6 basis of marks obtained by
candidates at oral interview was set aside and a direction was issued by the
Tribunal to prepare fresh merit list of candidates by adding the marks obtained
by them in both (i) written examination, and (ii) oral interview, excluding
those who were already in service. It was observed that in the oral test 40%
was fixed by the Committee as pass marks. The said standard should be applied
on the total marks as pass marks. Appointment should be given from the fresh
panel so prepared in order of merit subject to reservation and to fill up
vacant posts. Since substantial period had gone in the meanwhile, a direction
was also issued that age bar will not come in the way of the candidates in
getting appointment. The persons who were selected, appointed and were in
employment were protected. It was also observed that every appointment would be
subject to medical examination and police verification. A direction was also
issued that all appointments 7 should be given within a period of four months
from July 1, 2000. The case was thus finally disposed of.
8.
The
decision of the Tribunal was challenged in writ petitions in the High Court and
the High Court, by judgment and order dated November 27, 2000, disposed of the
petitions.
It observed that the
question of retaining those candidates who had been appointed, must be
considered afresh by the Tribunal since Tribunal had not assigned any reason as
to why they should be permitted to be continued in service. According to the
High Court, if the Tribunal was of the view that the selection process was vitiated,
no such sympathy could have been shown to the candidates selected in the said
selection process. It was also observed that the question as to whether 40%
marks could have been allotted to the oral test also ought to have been
considered by the Tribunal keeping in view various decisions of the Apex Court.
Taking note of the grievance of 8 some of the petitioners, the High Court
observed that the Tribunal would consider whether 100% roster had been
maintained.
Request was made to
the Tribunal to dispose of the matter at an early date preferably within a
period of two months from the communication of the order. That is how the first
round of litigation came to an end.
9.
The
Tribunal again considered the matter. The main grievance of the applicants before
the Tribunal, who were unsuccessful in written examination or oral interview
was that the marks obtained by them in both written examination and oral
interview ought to have been combined by the respondent authorities in
preparation of the merit list and panel ought to have been prepared on that
basis which was not done. Since the selection was made only on the basis of
oral interview, the whole selection process was vitiated in law. The
authorities ought to have considered marks of both, written examination and
oral interview 9 and ought to have prepared merit list and in that case, most
of the applicants would have been empanelled by finding place in the merit
list. It was also contended that the respondent authorities had followed a
`pick and choose' policy by including names of their `kiths and kins'. It was
alleged that certain applicants had cleared both written test as well as viva
voce and yet their names were not included in the panel prepared for the
selection. Other grievances were also made.
10.
The
case of the respondent authorities, on the other hand, was that those who had
become successful in both written test and oral interview were selected and
they were appointed in due course. They were discharging their duties as
Medical Technologists faithfully since three years and had acquired right to
continue as such and they could not be deprived of their livelihood for no
fault on their part at the belated stage. It was also contended that once those
candidates who 10 participated in the process and could not get themselves
selected, had no right to raise objection against such process which had been
undertaken in accordance with law. They were estopped by the doctrine of
estoppel by turning round and challenging it being illegal or unlawful.
1.
It
was also contended by the counsel for the State that since posts which were to
be filled in were very limited (80) and large number of candidates applied
(approximately 4000 candidates), the State authorities had no alternative but
to screen candidates by holding written examination. Such a `screening test'
was perfectly legal, valid and it could not have been objected. In other words,
according to the State, written examination was in the nature of `elimination
test'. So far as oral interview was concerned, it was submitted that the
Selection Committee was consisting of high ranking officials who acted
impartially, objectively and without malice. The allegation 11 that the
members of Selection Committee were instrumental in the matter of selection of
their close relations was totally baseless. Aggrieved candidates could not give
any name of alleged close relatives of the members of the Selection Committee.
It was, therefore, submitted that the action of the State was wholly legal and
valid.
11.
The
Tribunal considered the rival contentions of the parties and observed that as
against recruitment of 80 Medical Technologists, about 4000 candidates offered
their respective candidature for appointment.
It was unprecedented
and perplexing situation.
In absence of Recruitment
Rules, an administrative decision was taken by the Government for screening
unsuccessful candidates by holding written test which was legal and proper.
About 2500 candidates appeared at the written test out of 4000 applicants and a
list was prepared eliminating those candidates who had obtained less than 12
qualifying marks (40%) at the written examination. Since the object of the test
was only to oust huge number of unsuccessful candidates, there was no
illegality in undertaking the said exercise. A final list of eligible and
qualified candidates was prepared, who were called for oral interview.
According to the Tribunal, the purpose of written test was only to eliminate
huge number of unsuccessful candidates and it was not a case of selection based
on written examination and oral interview. There was no question of `pick and
choose' or showing discrimination as alleged.
12.
The
Tribunal also noted that about 190 candidates had already joined service as
Medical Technologists and they were working since more than three years. Since
the entire selection process had been found legal and lawful, there was no
question of cancellation of appointments of the candidates who had already
joined service.
13.
Moreover,
unsuccessful candidates having participated in the selection process without
any objection or protest, could not be allowed to turn around and challenge the
selection as illegal or null and void.
Following a decision
of this Court in Swaran Lata v. Union of India, (1979) 3 SCC 165, the Tribunal
held that the applicants could not `approbate and reprobate at the same time'.
14.
Taking
overall view of the matter, the Tribunal found that the selection process was
bona fide and in accordance with law and it was, therefore, required to be
approved.
15.
Appointments
which had already been made by the authorities of 190 candidates who had gained
experience of more than three years in the work of investigation entrusted to
them also could not be disturbed. Accordingly, a direction was issued to the
State authorities to offer appointments to successful candidates in the waiting
list subject to availability of 14 vacancies following medical examination and
police verification.
16.
The
above judgment and order was again challenged by the unsuccessful candidates in
the High Court and by the impugned order, the High Court allowed the petitions.
It observed that the Tribunal had committed an error of law in not directing
the authorities to prepare merit list on the basis of marks obtained in the
written test as well as viva voce. It was urged that if the marks obtained at
the written test had been kept out of consideration, proper selection could not
be said to have been made and the entire panel would be invalid. Referring to
Raj Kumar & Ors. v. Shakti Raj & Ors., (1997) 9 SCC 527 and Praveen
Singh v. State of Punjab & Ors., (2000) 8 SCC 633, the High Court issued
the following directions;
"We hold that a
fresh panel of Medical Technologies has to be prepared by the State Government
on the basis of qualifying marks both in the written test as well as in oral
test. We, therefore, dispose of all 15 these writ applications by giving the
following directions:
i.
The
State Government must prepare within a period of six weeks from the date of
service of this order upon them a fresh panel of Medical Technologies on the
basis of qualifying marks in the already held written and oral test for
appointment to the post of Medical Technologists;
ii.
40%
of such marks including the marks obtained in written and oral test should be
the qualifying marks and persons who have not obtained 40% marks need not be
empanelled;
iii.
After
preparation of such panel, appointment is to be made on the basis of such
panel;
iv.
While
preparing the panel the rule relating to reservation must be taken care of;
v.
In
the matter of preparation of panel no candidate who otherwise qualifies in the
panel on the basis of the test made above should be disqualified solely on the
ground of age;
We are giving these
directions since controversy is pending for all these years and for which the
petitioner or candidates are not to be blamed".
17.
It
was also made clear that if those candidates who had already been appointed did
not find place in the panel, consequential 16 orders could be made by the
State Government but those who were in the panel could be accommodated if by
reason of existing vacancies, they could be accommodated.
18.
It
appears that certain candidates approached this Court by filing Special Leave
Petition (Civil) No. (CC) 3728 of 2004 challenging the judgment and order dated
August 11, 2003. A two Judge Bench of this Court dismissed the Special Leave
Petition as withdrawn on April 29, 2004.
19.
Nothing
was done by the appellant herein immediately against the order passed by the
High Court on August 11, 2003. It further appears that implementation of the
order passed by the High Court was sought and a contempt petition was filed by
petitioners inter alia, alleging that the authorities had not implemented the
directions issued by the High Court. A prayer was, therefore, made to call upon
the respondents/ contemnors to show cause why they should not be committed to
prison or 17 otherwise dealt with for having violated the judgment and order
dated August 11, 2003 passed by the High Court and why they should not be
directed to prepare fresh panel in accordance with those directions.
20.
An
affidavit was filed by the State asserting that they had followed the
directions of the Court. It was stated that there was some delay on the part of
the authorities because of procedural difficulties and practical problems but
it was unintentional. They were always ready and willing to carry out the
directions of the Court. An unconditional apology was also tendered by the
respondents.
21.
The
High Court passed an interim order on December 21, 2004. Reading of the order
made it clear that the Court was not inclined to issue any direction for
removal/termination of services of 66 persons who were working since 3-4 years.
The Court directed the State to make inquiries and to report to the Court on
January 06, 2005 as to the exact number of 18 vacancies which were available
for the appointment of the panel to be prepared. It also directed the State to
inform the Court whether nine vacancies which had become defunct, could be
revived.
22.
On
January 06, 2005, again the matter was placed before the Court as per the order
dated December 21, 2004. The High Court heard learned counsel for the parties
and noted that a panel of 586 candidates had been prepared on the basis of 40%
marks obtained both in the written test as well as oral interview. It also
observed that sixty-six persons who were appointed should be allowed to be
accommodated by granting liberty to the State Government in the manner it
thought best without disturbing their seniority or continuity of their service.
It directed that the
remaining vacancies should be filled up on the basis of seniority position from
the panel of 586 candidates. Contempt petition was accordingly disposed of.
23.
The
appellants being aggrieved by the directions of the High Court have approached
this Court.
24.
There
was long delay of 559 days in approaching this Court by the appellants so far
as the order passed in the Writ Petition. On July 15, 2005, notice was issued
by this Court on Special Leave Petition as well as on application for
condonation of delay. No stay of appointment, however, was granted pursuant to
the impugned order of the High court and liberty was granted to the State to
make appointments. It was, however, clarified that the appointments if any
shall be subject to further orders that may be passed in the Special Leave
Petition. The matter was thereafter adjourned from time to time.
Affidavits and
further affidavits were filed.
Considering the
nature of litigation and administrative problems of the State Government on one
hand and future of several candidates on the other hand, it was thought fit to
dispose 20 of the matter finally and accordingly the Registry was directed to
place the matter for final disposal on a non-miscellaneous day. That is how the
matter has been placed before us.
25.
We
have heard learned counsel for the parties.
26.
The
learned counsel for the appellants contended that the orders passed by the High
Court were not in consonance with law.
Moreover, even those
orders had not been complied with by the authorities. The orders are,
therefore, liable to be set aside. It was stated that the action of the
authorities of allocation of more than 15% marks for oral interview was illegal
and contrary to the law laid down by this Court. Preparation of merit list and
panel of selected candidates was arbitrary and unreasonable. The action of the
authorities and of the Tribunal as well as of the High Court of protecting 66
selected and appointed candidates was unlawful and no such direction could have
been issued. It was 21 submitted that since the action of the respondent
authorities was illegal and the Tribunal as well as the High Court were wrong
in protecting illegally selected candidates, the doctrine of estoppel, waiver
or acquiescence does not apply. The entire process of selection got vitiated
and directions are required to be issued by this Court to respondent
authorities to act in accordance with law.
27.
It
was stated that several vacancies are still there in the cadre of Medical
Technologists and almost all the appellants can be accommodated by the State
authorities. It was, therefore, submitted that the appeals deserve to be
allowed by issuing consequential directions.
28.
The
respondent authorities, on the other hand, supported the orders passed by the
Tribunal and confirmed by the High Court. It was stated that there is gross and
unexplained 22 delay and laches on the part of the appellants in approaching
this Court.
29.
So
far as the order dated August 11, 2003 is concerned, it was submitted that
certain directions were issued which were complied with by the authorities. The
appellants herein did not challenge those directions at that time. In fact,
their grievance was that the authorities had not complied with the orders
passed in August, 2003 and hence contempt petition was filed after about ten
months. The prayer was to implement the order passed by the High Court.
Necessary directions were, therefore, issued by the High Court in January, 2005
ordering the authorities to act in accordance with the directions of the Court.
30.
It
was also contended that several candidates did not challenge the orders of the
High Court. It was urged that having accepted the judgment and filed contempt
petition, the appellants were estopped under the doctrine of 23 estoppel,
waiver or acquiescence and they cannot challenge the order of 2003 by
approaching this Court after about two years.
It was urged that
present case is one of `approbate and reprobate', `hot and cold', or `fast and
loose'. This Court, in exercise of discretionary jurisdiction under Article 136
of the Constitution may not entertain such prayer and dismiss all the matters.
31.
It
was further urged that in the order passed in contempt petition, the High Court
observed that if any person is aggrieved by any action taken by the authorities
in pursuance of the order, he is at liberty to take appropriate proceedings in
accordance with law. Therefore, even on that ground, the present appeals are
not maintainable.
32.
The
learned counsel for the State stated that 66 persons have been retained who
were selected and appointed. Initially, they were not made parties and were
continued in service. By now they have completed about ten 24 years. He fairly
stated that in the circumstances, this Court may direct the authorities that
those candidates who are similarly situated to 66 persons who are protected and
who are in the merit list above those 66 candidates may be ordered to be
appointed inasmuch as there are several vacancies. He, however, submitted that
the said benefit may be extended only to those candidates who have approached
the Court by filing Original Applications, Writ Petitions and by making
grievance before this Court. The candidates who had not approached the Tribunal,
High Court and this Court have no right to make any grievance. Hence, the
applicants who have sought impleadment in the present proceedings for the first
time cannot claim the benefit which the appellants herein have claimed. It was,
therefore, submitted that an appropriate direction may be issued so that no
prejudice will be caused to those employees who were vigilant of their rights
and who are otherwise 25 qualified and eligible on the basis of protection
granted to 66 employees.
33.
The
learned counsel appearing for 66 employees who were appointed, protected by the
Tribunal and by the High Court and who are still in service, submitted that the
High Court was wholly right in protecting his clients. It was stated that their
names were sponsored by the Employment Exchange, they cleared written
examination as well as oral interview; they were declared successful and were
appointed. In the Original Application, they were not made parties before the
Tribunal. They were, therefore, protected by the Tribunal and there was no
illegality therein. The High Court, no doubt, directed the Tribunal to consider
the cases of those candidates but it is equally true that they were in service
and therefore they were protected even in the second round.
The High Court in the
second round, expressly stated that since the employees were in service, they
needed protection and accordingly 26 direction was issued to that effect. Even
during the course of proceedings, it was stated on behalf of the petitioners
before the High Court that the protection granted in favour of selected
candidates could be continued. It was, however, submitted that similar benefit
ought to be extended to them. The High Court expressly protected them by
directing the authorities to consider the cases of eligible petitioners and to
extend similar benefit to them. Even thereafter, in the contempt proceedings,
the selected candidates were not disturbed. By now, they have completed about
ten years of service. It was, therefore, submitted that this Court, in exercise
of power under Article 136 of the Constitution, may not interfere with the
direction issued by the High Court.
34.
Having
heard learned counsel for the parties, in our opinion, the appeals deserve to
be partly allowed. The contention on behalf of the State Government that
written examination 27 was for short-listing the candidates and was in the
nature of `elimination test' has no doubt substance in it in view of the fact
that the records disclose that there were about 80 posts of Medical Technologies
and a huge number of candidates, approximately 4,000 applied for appointment.
The State authorities had, therefore, no other option but to `screen'
candidates by holding written examination. It was observed that no Recruitment
Rules were framed in exercise of the power under the proviso to Article 309 of
the Constitution and hence no such action could be taken. In our opinion,
however, even in absence of statutory provision, such an action can always be
taken on the basis of administrative instructions - for the purpose of
`elimination' and `short listing' of huge number of candidates provided the
action is otherwise bona fide and reasonable. It has also come on record that
the administrative decision had been taken by the State to take `elimination
test' to `short 28 list' huge number of candidates. It is further clear that
the plea to that effect was raised by the State in the first round of
litigation before the first authority, viz. the Tribunal itself. But, in view
of the fact that in that round of litigation, the Tribunal held the action of
the State authorities to be wrong and the High Court upheld it and the State
did not challenge the order in this Court, in our opinion, the High Court in
the second round, did not commit any error of law in directing the authorities
to prepare merit list on the basis of marks obtained by the candidates in
written examination as also in oral interview.
It was not open to
the State authorities to reiterate and re-agitate in the second round, the same
ground, that written examination was in the nature of `elimination test' and it
was limited to `short listing' of candidates and marks obtained by candidates
at the written examination could not be considered for preparation of merit
list. The said stage had 29 already gone and the decision in the first round
had attained finality so far as the nature of written examination was
concerned.
The Tribunal and the
High Court were, therefore, right in holding in the second round that the merit
list was required to be prepared on the basis of composite marks obtained by
candidates at the written examination and oral interview both and not only on
the basis of marks at the oral interview.
35.
The
contention on behalf of the appellants that as per the law laid down by this
Court in Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., (1981) 1
SCC 722 and other cases that there cannot be more than 15% marks at the oral
interview also cannot be accepted at this stage. As already indicated earlier,
such a direction was issued as early as in 2000. The appellants, who were
applicants before the Tribunal and petitioners before the High Court accepted
the said decision and did not challenge the legality thereof by 30 approaching
this Court. Even in the second round, the same view was taken both by the
Tribunal and by the High Court. The decision of the High Court was not
challenged immediately. On the contrary, by filing a Contempt Petition,
implementation of the direction of the High Court was sought by the appellant.
The said direction was, therefore, binding on all the parties including the
appellants.
36.
Regarding
protection granted to 66 candidates, from the record it is clear that their
names were sponsored by the Employment Exchange, they were selected and
appointed in 1998-99. The candidates who were unable to get themselves selected
who raised a grievance and made a complaint before the Tribunal by filing
applications ought to have joined them (selected candidates) as respondents in
the Original Application, which was not done. In any case, some of them ought
to have been arrayed as respondents in a `representative 31 capacity'. That
was also not done. The Tribunal was, therefore, wholly right in holding that in
absence of selected and appointed candidates and without affording opportunity
of hearing to them, their selection could not be set aside.
37.
The
Tribunal stated;
"In the case
before us, the marks obtained in the written test were excluded from
consideration which preparing the final list not in accordance with any policy
which decision of the Government. Moreover, the weight of the decision of the
Apex Court is on the side of consideration of the totality of the performance
of the candidates in both oral and written test, when rules do not provide
against it and appointment should be given from the merit list thus prepared in
accordance with the rules including reservation rules. In our views same course
should be followed in the cases before us. In this connection, it should be
mentioned that this finding will not affect the appointments given to medical
technologists (Laboratory) already the appointments given as those person are
not parties to the proceedings before this Tribunal. It would be most improper
for us to pass any judgment against to them without giving them an opportunity
of being heard. So those appointments will remain unaffected by this
Judgment".
(emphasis supplied)
32
38.
The
learned counsel for the respondents, in this connection rightly placed reliance
on a decision of this Court in Prabodh Verma and Ors. v. State of Uttar Pradesh
& Ors., (1984) 4 SCC 251.
39.
True
it is that the High Court, in the first round, directed the Tribunal to
reconsider the matter of 66 candidates who were selected and appointed
observing that the Tribunal had not assigned any reason for granting
protection. With respect, it was not factually correct. The Tribunal had
recorded reasons, namely, that they had been selected and appointed, they were
working since the date of their appointment; they were not joined as
respondents and no opportunity of hearing was afforded to them and in their
absence and without observing principles of natural justice and fair play,
their appointment could not be set aside.
40.
Be
that as it may, in the second round also, the Tribunal as well as the High
Court protected them.
41.
Dealing
with the selected candidates, the Tribunal stated;
"Taking an
over-all view of the matter as disclosed from material on record, we find that
the selection process opted by the Respondent authorities was bonafide and in
accordance with the law. Therefore, we approve the action taken by them in the
matter. We hold that the entire selection process was not vitiated in law and
hence there was no question of quashing the selection process and other action
adopted by the respondents in the matter. There was again no question of
cancellation of the appointments given by the State Respondent authorities to
190 candidates. They have served for about 3 years and have hence gained
sufficient experience in the work of investigation entrusted to them.
Again any other
setting aside their appointments was bound to affect adversely the working of
various medical Technologists in different Medical Units throughout the State
of West Bengal. We also hold that fixation of qualifying marks in both written
and oral test as 40% is quite lawful and valid in the facts and circumstances
of the case.
In the aforesaid
background and scenario, we direct that the appointees (in-service candidates)
34 will continue to do work as Medical Technologists. We also hold that the
panel of 240 candidates was quite lawful and valid. Accordingly, we direct the
State respondent authorities to offer appointments to the successful
candidates, who are not now waiting in the Panel (Namely from Sl. No. 202-240)
subject to availability of vacancies and also subject to medical examination
and police verification. We also issue directions to the Respondents concerned,
to relax the age illegible of the empanelled successful candidates (namely from
Sl. No. 202- 240), if so required."
42.
The
High Court, in the writ petition also stated;
"It is further
made clear that if those candidates who are already appointed do not find a
place in the panel in that case consequential orders may be made by the State
Government. But those who were in the panel if they can be accommodated by
reason of existing vacancies in such cases persons who have already been
appointed should not be disturbed. If is further made clear that appointments
must be made on the basis of the panel as directed above."
43.
Even
in contempt proceedings, similar orders were passed.
44.
On
December 21, 2004, the Court passed the following orders;
"After
considering the facts and circumstances of the case and also the affidavits
filed by the State, it appears that in the panel which has been prepared, there
are sixty-six persons who do not qualify on the basis of the norms fixed by
this Court's order dated 11th August, 2003 and on the basis of which the panel
has been prepared. But the fact remains that those sixty-six persons are now
working. There were none vacancies which could not be filled up. It also
appears from the affidavit of the State that those vacancies have become
defunct. The Court is also not inclined to pass any order for
removal/termination of services of those sixty-six persons who have been
working for last three to four years and have become confirmed".
(emphasis supplied)
45.
Then
while finally disposing of Contempt Petition, the Court said;
"We, therefore,
give liberty to accommodate those sixty six persons in the manner it thinks
best and without disturbing their seniority or continuity of service."
46.
In
fact, it was stated at the Bar that on behalf of the appellants a statement
was 36 made before the High Court that appointment of 66 employees may not be
disturbed but similar relief could be granted and benefit should be extended to
the candidates who had approached the Court. The Court, to that extent,
accepted the submission and directed the authorities to consider the cases of
those candidates who had obtained requisite 40% marks at written examination
and oral test and who could be placed in the merit list along with or above 66
candidates. By taking such view, no illegality can be said to have been
committed by the High Court and we see no infirmity in such a direction.
47.
In
Munindra Kumar & Ors. v. Rajiv Govil & Ors., (1991) 3 SCC 368, the
selection comprised of written test, group discussion and oral interview. The
relevant rule fixed 40 per cent of total marks for group discussion and oral
interview (20 per cent each). Though this Court held fixation of marks as arbitrary
being on higher side, it refused to set aside 37 selection made on that basis
since selection had already been made, persons were selected, appointed and
were in service.
48.
In
Gujarat State Deputy Executive Engineers' Association v. State of Gujarat &
Ors., 1994 Supp (2) SCC 591, this Court recorded a finding that appointments
given under the `wait list' was not in accordance with law. It, however,
refused to set aside such appointments in view of length of service (five years
and more).
49.
In
Buddhi Nath Cahudhary & Ors. v. Akhil Kumar & Ors., (2001) 3 SCC 328,
appointments were held to be improper. But this Court did not disturb the
appointments on the ground that the incumbents had worked for several years and
had gained good experience.
"We have
extended equitable considerations to such selected candidates who have worked
on the posts for a long period", said the Court.
50.
In
M.S. Mudhol (Dr.) & Anr. V. S.D. Halegkar & Ors., (1993) 3 SCC 591,
the 38 petitioner sought a writ of quo warranto and prayed for removal of a
principal of a school on the ground that he did not possess the requisite
qualification and was wrongly selected by the Selection Committee. Keeping in
view the fact, however, that the incumbent was occupying the office of
Principal since more than ten years, this Court refused to disturb him at that
stage.
51.
In
our considered opinion, the law laid down by this Court in aforesaid and other
cases applies to the present situation also. We are of the considered view that
it would be inequitable if we set aside appointments of candidates selected,
appointed and are working since 1998-99. We, therefore, hold that the Tribunal
and the High Court were right in not setting aside their appointments.
52.
It
is undisputed that by the time we are called upon to decide the matter, the
selected and appointed candidates have completed ten years. They are thus
having rich 39 experience in the field. There are several vacancies. The stand
of the State Government is equally fair and reasonable. It was stated that
those candidates who had grievance against the selection and had not waived
their right to get similar treatment and had approached the Tribunal, High
Court and this Court, may be granted similar relief. We are also of the view
that such relief can be granted in favour of appellants who were agitated and
had raised voice against the selection of candidates before the Tribunal,
before the High Court and before us.
53.
Those
candidates who had not approached the Tribunal, High Court or this Court have
now filed Interim Applications in this Court. The learned counsel appearing for
those applicants submitted that they may also be granted similar benefits. It
was urged that equals must be treated equally which is the fundamental right
enshrined in Articles 14 and 16 of the Constitution. It was vehemently 40
argued that it is settled law that fundamental rights cannot be waived. Hence,
even if the applicants had not approached this Court earlier, they can come to
this Court claiming similar relief by invoking Part III of the Constitution.
54.
We
are unable to uphold the contention. It is no doubt true that there can be no
waiver of fundamental right. But while exercising discretionary jurisdiction
under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into
account certain factors and one of such considerations is delay and laches on
the part of the applicant in approaching a writ-Court. It is well settled that
power to issue a writ is discretionary. One of the grounds for refusing reliefs
under Article 32 or 226 of the Constitution is that the petitioner is guilty of
delay and laches.
55.
If
the petitioner wants to invoke jurisdiction of a writ-Court, he should come to
41 the Court at the earliest reasonably possible opportunity. Inordinate delay
in making the motion for a writ will indeed be a good ground for refusing to
exercise such discretionary jurisdiction. The underlying object of this
principle is not to encourage agitation of stale claims and exhume matters
which have already been disposed of or settled or where the rights of third
parties have accrued in the meantime [vide State of M.P. & Anr. V. Bhailal
Bhai, (1964) 6 SCR 261; Moon Mills v. Industrial Court, Bombay, AIR 1967 SC
1450; Bhoop Singh v. Union of India & Ors., (1992) 2 SCR 969].
56.
This
principle applies even in case of an infringement of fundamental right [vide
Trilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110; Durga Prasad v. Chief
Controller, (1969) 1 SCC 185; Rabindranath Bose v. Union of India, (1970) 1 SCC
84].
57.
There
is no upper limit and there is no lower limit as to when a person can approach
42 a Court. The question is one of discretion and has to be decided on the
basis of facts before the Court depending on and vary from case to case. It
will depend upon what the breach of fundamental right and the remedy claimed
are and when and how the delay arose.
58.
We
are in respectful agreement with the following observations of this Court in
P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152;
"It is not that
there is any period of limitation for the Courts to exercise their powers under
Article 226 nor is it that there can never be a case where the Courts cannot
interfere in a matter after the passage of a certain length of time. But it
would be a sound and wise exercise of discretion for the Courts to refuse to
exercise their extra-ordinary powers under Article 226 in the case of persons
who do not approach it expeditiously for relief and who stand by and allow
things to happen and then approach the Court to put forward stale claims and
try to unsettle settled matters"
(emphasis supplied)
59.
From
the facts, it is clear that written examination for the selection of 43
Medical Technologists was taken as early as in August, 1995 and list of more
than 1,000 candidates was published in June, 1996. By now more than a decade
has passed. The applicants who had never challenged the selection before the
Tribunal, before the High Court and before us and have applied for the first
time in the present proceedings which were instituted in 2005 by filing
impleadment applications have thus accepted the position as prevailed in 1996.
Qua them, therefore, the matter can be said to have been `settled'. Initiation
of proceedings at the instance of those candidates now will `unsettle the
settled position'.
60.
In
our opinion, the learned counsel for the State is right in contending that even
if this Court holds that the appellants who have approached this Court are
entitled to some relief, such relief could be granted to those candidates who
had grievance against the selection and who had challenged the action of the
respondent authorities but it could not be 44 extended to the applicants who
have approached this Court in the present proceedings.
61.
Though
there is considerable force in the argument of the learned counsel for the
State and contesting respondents that there is substantial delay on the part of
the appellants in approaching this Court, in the light of factual scenario and
the direction which we are inclined to issue, we have thought it fit not to
dismiss Special Leave Petitions on the ground of delay but considering merits
of the case, we are issuing necessary directions granting relief to the
appellants who were vigilant about their rights.
62.
Similarly,
there is also substance in the contention of the learned counsel for the
respondents that the appellants, by appearing in the written examination and
oral interview had taken a chance and having failed have approached the
Tribunal. Again, a Special Leave Petition filed by some candidates has already
been dismissed by this Court. But in 45 the larger interest and keeping in
view vacancies in the cadre, we have granted equitable relief in favour of
eligible and qualified applicants.
63.
In
the result, the appeals are partly allowed. Service of 66 candidates who were
selected and appointed in 1998-99, whose appointments were initially not
challenged and thereafter who were protected by the Tribunal and by the High
Court have not been disturbed.
The appellants who
are similarly situated to 66 respondents who are protected in the present
proceedings will be treated at par with those respondents. And if on the basis
of merit list prepared as per the order of the High Court, they are found
eligible and qualified, the State Government will consider their cases, i.e.
the cases of the appellants and will appoint them in accordance with law. Age
bar, if any, will not come in the way of those candidates. The said benefit,
however, is limited to those candidates who have challenged 46 the selection
by approaching the Tribunal, the High Court and this Court. Our directions will
not apply to those candidates who have approached this Court for the first time
by filing Interim Applications. Their applications, therefore, stand dismissed.
64.
On
the facts and in the circumstances of the case, there shall be no order as to
costs.
.........................................................J.
(C.K. THAKKER)
.........................................................J.
NEW
DELHI,
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