CASE NO.: Appeal (civil) 1609 of 2008 PETITIONER: Sadananda Halo & Others RESPONDENT: Momtaz Ali Sheikh & Others DATE OF JUDGMENT: 27/02/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT:
J U D G M E N T
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.