REPORTABLE
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
STATE OF WEST BENGAL & ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NOs. OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NOs. 10507-10509 OF 2005
UJJAL MAITY & ANR. ... APPELLANTS
VERSUS
KALYAN BAGCHI & ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NOs. OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NOs. 9531-9532 OF 2005
MUKSUDUR RAHMAN & ORS. ... APPELLANTS
VERSUS
KALYAN BAGCHI & ORS. ... RESPONDENTS
J U D G M E N T
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.
11. 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.
12. 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.
13. 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
14. 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’.
15. 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.
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
15these 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.
19
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.
33
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.
35
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
43Medical 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)
NEW DELHI, …………………………………………………J.
November 04, 2008. (D.K. JAIN)