{"id":37053,"date":"2008-02-27T00:00:00","date_gmt":"2008-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sadananda-halo-others-vs-momtaz-ali-sheikh-others-on-27-february-2008"},"modified":"2015-09-12T03:01:52","modified_gmt":"2015-09-11T21:31:52","slug":"sadananda-halo-others-vs-momtaz-ali-sheikh-others-on-27-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sadananda-halo-others-vs-momtaz-ali-sheikh-others-on-27-february-2008","title":{"rendered":"Sadananda Halo & Others vs Momtaz Ali Sheikh & Others on 27 February, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sadananda Halo & Others vs Momtaz Ali Sheikh & Others on 27 February, 2008<\/div>\n
Author: V Sirpurkar<\/div>\n
Bench: S.B. Sinha, V.S. Sirpurkar<\/div>\n
           CASE NO.:\nAppeal (civil)  1609 of 2008\n\nPETITIONER:\nSadananda Halo & Others\n\nRESPONDENT:\nMomtaz Ali Sheikh & Others\n\nDATE OF JUDGMENT: 27\/02\/2008\n\nBENCH:\nS.B. Sinha & V.S. Sirpurkar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL No 1609 OF 2008
\n(Arising out of SLP (C) No.3536 of 2007)
\nWITH
\nCIVIL APPEAL NO. 1614 OF 2008
\n(Arising out of SLP (C) No.6576 of 2007)
\nKhagen Hazarika & Others\t\t\t\t\t. Appellants
\n\tVersus
\nThe State of Assam & Others\t\t\t\t. Respondents
\nWITH
\nCIVIL APPEAL NO 1615 OF 2008
\n(Arising out of SLP (C) No.6581 of 2007)
\nAnanda Das & Others, etc. etc.\t\t\t\t. Appellants
\n\tVersus
\nMd. Mainul Haque Chowdhury & Others, etc. etc.\t. Respondents
\nWITH
\nCIVIL APPEAL Nos. 1610-1613 OF 2008
\n(Arising out of SLP (C) Nos.17219-17222 of 2007)
\nShri Dilip Barman & Ors. etc. etc.\t\t\t. Appellants
\n\tVersus
\nMd. Mainul Haque Chowdhury & Ors. etc.etc.\t. Respondents<\/p>\n
V.S. SIRPURKAR, J.\n<\/p>\n
1.\tLeave granted in Special Leave Petition (C) Nos.3536\/2007,
\n6576\/2007, 6581\/2007 and 17219-17222 of 2007.\n<\/p>\n
2.\tThe present Judgment shall dispose of all the above mentioned
\nSpecial Leave Petitions.\n<\/p>\n
3.\tA large number of petitioners have filed the above sets of Special
\nLeave Petitions challenging therein a common judgment of the Guwahati
\nHigh Court disposing of as many as 54 Writ Appeals which were filed
\nagainst the judgment and order passed by the learned Single Judge of that
\nHigh Court disposing of as many as 222 Writ Petitions.  All those 222 Writ
\nPetitions were disposed of by the learned Single Judge by a common
\njudgment.  The writ petitions pertained to the selections in a selection
\nprocess for the 5500 posts of Armed Constables which was initiated by
\nadvertisements dated 21.8.2004.  This advertisement was based on the
\nseparately identified vacancies for each Armed Police Battalion having its
\npermanent headquarters in a District.  The recruitment was to be held in 25
\ndifferent centres covering each District of State of Assam for the vacancies
\nidentified separately for that district.  As many as 2 lakh candidates took
\npart in the recruitment process which commenced on 3rd December, 2004
\nand lasted upto 11th December, 2004.  On completion of the recruitment
\ndrive, separate select-lists for each District for the Armed Police Battalion
\nlocated in the District and the District Executive Force were prepared.
\nThese select-lists were challenged in the above mentioned 222 writ
\npetitions by nearly 3000 unsuccessful aspirants.  Later on more than 1000
\nselected candidates also got themselves impleaded in the writ petitions.
\nInitially the court sought for the records of the selection process and
\nordered the same to be kept in safe custody of the Registry of the court.
\nThis was done since the apprehensions were expressed by the Writ
\nPetitioners that there may be tampering of records.  A scrutiny of these
\nrecords was got done by the learned Single Judge through three Judicial
\nOfficers who were appointed for that purpose.  A sample survey of the
\nrecords of the selected\/unsuccessful candidates was done by the three
\nJudicial officers.  While going through the records, the learned Single
\nJudge considered the same District-wise and ultimately upheld the
\nselections in respect of 10 Districts while the selections as well as the
\nselection process in the other Districts were set aside and quashed.  This
\ngave rise to the Writ Appeals both by the State as also by the selected
\ncandidates.  The appeals, therefore, came to be filed in respect of the
\nfollowing Districts and Battalions:\n<\/p>\n
1)\tDhubri\n<\/p>\n
2)\tKarimganj\n<\/p>\n
3)\tHailakandi\n<\/p>\n
4)\tCachar\n<\/p>\n
5)\tSibsagar\n<\/p>\n
6)\tJorhat\n<\/p>\n
7)\tNagaon\n<\/p>\n
8)\tDarang\n<\/p>\n
9)\tSonitpur\n<\/p>\n
10)\tGoalpara\n<\/p>\n
11)\tMorigaon\n<\/p>\n
12)\tBarpeta\n<\/p>\n
13)\t4th APBN, GRP, CID, SB & ACB\n<\/p>\n
14)\tCommando BN & Kamrup DEF\n<\/p>\n
15)\t10th APBN<\/p>\n
The Division Bench allowed the appeals pertaining to (i) Karimganj District,\n<\/p>\n
(ii) Hailakandi District, (iii) Commando Battalion & Kamrup DEF; and (iv)
\n10th AP Battalion.  The appeals pertaining to the rest of the
\nDistricts\/Battalions were dismissed.  As such the selections made in those
\nDistricts\/Battalions were also set aside as was done by the learned Single
\nJudge.  In the present Civil Appeals before us we are concerned with the
\nselections of only three Districts, they are: (i) Dhubri, (ii) Barpeta; and (iii)
\nSonitpur.  Civil Appeal arising out of SLP (C) No.3536\/2007 pertains to
\nDhubri District, Civil Appeal arising out of SLP (C) Nos.6581 and SLP (C)
\nNos.17219-17222 of 2007 pertain to Barpeta District while Civil Appeal
\narising out of SLP (C) 6576 of 2007 pertains to Sonitpur District.  We will,
\ntherefore, be limiting ourselves only in so far as those Districts are
\nconcerned.\n<\/p>\n
4.\tAs has been stated earlier, there were advertisements dated
\n21.8.2004 published in all the leading newspapers of the State which
\nprovided the District\/Battalion-wise vacancies as also the vacancies meant
\nfor the reserved categories candidates.    The notice also provided the
\nfurther details regarding the dates and venue of the Recruitment Rally in
\neach District.  The minimum physical standards for male and female
\ncandidates were also indicated therein.  The educational qualification was
\n8th Class passed while age limit was between 18 to 25 years as on
\n1.1.2004, relaxable by three years in the case of candidates belonging to
\nSC\/ST.  10% of the vacancies were to be filled up by women candidates
\nwhile further 5% were reserved for compassionate appointments.  Under
\nthe procedure of selection it was provided as under:
\n“All the candidates will have to undergo test on physical
\nstandard as stated above, if their application forms found
\ncorrect and in order in all respect.  Candidates found to have
\nany physical deformity duly certified by the medical officer
\npresent in the test, shall be rejected.  Thereafter, all male
\ncandidates will be asked to run a race of 0.60 KM and female
\n(sic) candidates qualified in the race shall be allowed to appear
\nfor subsequent test mentioned below.\n<\/p>\n
(a) Physical
\nefficiency test
\nMaximum marks
\nQualifying
\nmarks\n<\/p>\n
1. 100 Mtrs. Race\n<\/p>\n
2. High Jump\n<\/p>\n
3. Long Jump\n<\/p>\n
(b) Personal
\ninterview
\n50`
\n25<\/span>
\nGeneral awareness,
\ngeneral knowledge
\nand language<\/p>\n
Only candidates who qualify in the physical efficiency test shall
\nbe short listed for appearing in the personal interview (viva
\nvoce).\n<\/p>\n
(c)\tFinal selections will be made district\/battalion wise on
\nthe basis of the over all merit on physical efficiency test and
\npersonal interview (viva voce) and reservation of quota under
\nRVSP Act, 1978.”\n<\/p>\n
One Selection Board was constituted for each District consisted of:
\n“(1)\t Superintendent of Police\/Commandant (whoever is
\nsenior  Chairman)’
\n(2)\tSuperintendent of Police\/Commandant (whoever is
\njunior  Member)
\n(3)\tOne Medical Officer (to be nominated by the Joint
\nDirector, Health Services of the District  Member).
\nIn the Districts, where there is (sic) no Battalion headquarter,
\nthe Commandant of the nearest Battalion was to be the
\nChairman or Member as the case may be, to be nominated by
\nthe DGP.  In the notification constituting the Selection Board, it
\nwas also provided that the Selection Board shall (sic) also
\nconsider candidates having HSLC or equivalent qualification or
\nabove from recognized Board\/University of Assam for
\nrecruitment to District Executive Force (UB).”\n<\/p>\n
The guidelines were issued on 2.9.2004 for conducting recruitment tests.
\nAs per the said guidelines, the entry of the candidates into the Recruitment
\nRally was restricted to 5,000 on a single day.  The candidates were to
\nsubmit their filled in application forms to the Chairman of the Selection
\nBoard or his representatives before participating in the elimination race.
\nFor the male candidates, the distance of the race was 1.60 Kms. while for
\nthe female candidates it was 0.80 Kms.  Only those candidates who could
\nqualify in the physical standards were permitted to participate in the
\nelimination race and only those who could qualify the elimination race were
\nto be given identity numbers after recording their Bio-Data in the prescribed
\nregister.  Those who could qualify in the elimination race were to face the
\nphysical test comprising of 100 meter race, high jump and long jump and
\nonly those candidates who could secure 25 marks out of the 50 allotted for
\nphysical efficiency test were to be called for personal interview, for which
\nthe allotted marks were 50.  Those candidates who could qualify in the
\nelimination race were to get 15 marks whereas the 35 marks were reserved
\nfor the physical efficiency  test wherein 15 marks were to be for 100 meter
\nrace, 10 marks were for long jump and 10 marks for the high jump.  The
\nRecruitment Rallies were held between 3rd to 11th December, 2004 and
\nafter completion of the entire process of selection the select-lists for each
\nDistrict\/Battalion were prepared.  It was, at this stage that the Writ Petition
\ncame to be filed firstly challenging the very recruitment process and
\nmethodology adopted.\n<\/p>\n
5.\tThe selections were ultimately held between 7th to 11th December,
\n2004.  Though, initially the candidates belonging to one particular District
\ncould take part in the Recruitment Rallies for the posts of that District only,
\nafterwards the Government by its letter dated 16.11.2004 conveyed the
\ndecision that the restrictions relating to District-wise selection of candidates
\nbeing limited to the candidates of those Districts only would not apply to the
\nrecruitment of the Armed Police Battalion but would hold good only for the
\nposts advertised for the District Executive Force.\n<\/p>\n
6.\tIn the writ petitions various challenges were made before the learned
\nSingle Judge they were, inter alia, (i) not following the procedure in the
\nemployment notice; (ii) non maintenance of necessary Registers; (iii)
\nselection of the candidates without their taking part in the selection process
\nor the selection of under-qualified and over-aged candidates; (iv) selection
\nof those candidates who could not qualify the physical tests; (v)
\ninterpolations\/tampering in the allotted marks to the candidates; (vi) political
\ninterference in support of some of the selected candidates; (vii) allotment of
\n50 marks for the personal interview segment as also (ix) consideration of
\nhuge number of candidates within a span of only 9 days.  In short the
\nwhole selection was dubbed as farcical.  Learned Single Judge cancelled
\nthe entire selection in respect of 15 Districts out of 26 Districts and that is
\nhow the appeals were filed by the selected candidates as has already been
\nclarified by us.  Now we are concerned only with the selections of three
\nDistricts named above.\n<\/p>\n
7.\tThough it was stated before us by the learned counsel appearing on
\nbehalf of the appellants that the learned Single Judge as well as the
\nDivision Bench had upset the selections only on the ground of non
\nfeasibility of completing the interviews of large number of candidates in
\nshort time and further though the learned counsel concentrated on that
\nfactor, it would be better to take account of the general findings as regards
\nthe selection process recorded by the learned Single Judge as well as the
\nDivision Bench to see whether those findings would affect the selections.\n<\/p>\n
10.\tIt was argued before the learned Single Judge that the selection
\nprocess was postponed on more than two occasions and there was an
\nulterior purpose on the part of the government behind these
\npostponements.  It was also stated that though initially there was a
\nrestriction of belonging to a particular District in order to be able to take part
\nin the selection process, such restriction was later on removed by the State
\nGovernment.  Considerable arguments seems to have been addressed on
\nthis aspect before the learned Single Judge.  It was pointed out that initially
\nthe selections were to be held earlier but they were postponed to 18th to
\n24th November, 2004 on account of the bye-elections in one of the
\nAssembly Constituency, further the second postponement was made to
\n30th November, 2004 by an order dated 2.11.2004 on account of Asian Car
\nRally, Kali Puja, Diwali and Id Festivals and ultimately, the selections were
\npostponed to the second week of December and in the meantime the
\ngovernment by its letter dated 16.11.2004 had removed the restrictions
\nrelating to the District-wise selection of candidates being limited to the
\ncandidates of those Districts only in cases of posts advertised for District
\nExecutive Force.\n<\/p>\n
11.\tA further common contention was raised that this postponement was
\npolitically motivated and the removal of the District restrictions was also
\npolitically motivated and it resulted in large scale irregularities in the
\nselection.\n<\/p>\n
12.\tThe next contention was regarding the distribution of marks.  It was
\npointed out that 50 marks were allotted for the personal interview which
\nwas not correct.  Lastly it was contended that the interviews were farcical in
\nnature and the large number of candidates could not have been
\ninterviewed on a single day.\n<\/p>\n
13.\tLearned Single Judge did not give independent findings on these
\ncontentions but chose to consider all these contentions together.  He first
\nfixed a benchmark of maximum 250 candidates to be interviewed on a
\nsingle day relying on certain rulings of this Court.  He also held that the
\nState would have to justify the allotment of 50 marks for the viva voce test.
\nThe learned Judge also recorded that while deciding about the effect of
\npostponement of interviews and the removal of District restrictions, he
\nwould consider the case of each District basing the same on the scrutiny
\nmade by the three judicial officers who were appointed by him to examine
\nthe District-wise records.  In para 25 the learned Judge held:
\n“The above discussion would now require the court to record
\nwhat has been revealed by the scrutiny of the records that had
\nbeen undertaken by the court and the conclusions that the
\ncourt considers prudent to reach on that basis.  It would not
\nonly be convenient but also imperative for the court to proceed
\nin the matter district\/centre-wise as each selection has to be
\nconstrued as a separate and independent selection.  What,
\nhowever, must be emphasized, at this stage, before embarking
\nupon the necessary discussions is that the records of each
\ndistrict have been scrutinized by the court only to determine
\nthe fairness of the exercise performed while subjecting the
\nhuge number of candidates to the different stages of the
\nselection process.  The court has not, even remotely, been
\nconcerned with the marks awarded to any particular candidate;
\nno attempt has been made to evaluate the standards reached
\nby the candidate at any of the stages of the selection process.
\nIt is broad and general impression of the selection process that
\nhas been attempted to be reached by the court on the basis of
\nthe records scrutinized and not a minute and microscopic
\nexamination of the selection process.  Again, it must be
\nemphasized that the scrutiny of the records has been made on
\na representative basis, as already indicated in the opening part
\nof the present judgment and the conclusions as will be reached
\nand recorded is by a process of correlation of the result of the
\nsample scrutiny with the rest of the cases constituting the
\ngeneral trend.  This, the court understands to be the only
\npragmatic manner of resolution of the dispute involving the
\nselection of nearly 5500 constables from a total of over 2 lakh
\njob seekers.” (Emphasis Supplied)<\/p>\n
We do not, however, find concrete findings having been given on the
\ngeneral submissions.  Before taking up this exercise the learned Single
\nJudge seems to have rejected, though indirectly, the objection raised by
\nthe State that having taken part in the selection process, the unsuccessful
\ncandidates could not have complained about the postponement of the
\nselection process nor could they question the correctness thereof after
\nbeing declared unsuccessful in the same.  Though the substantial case law
\nhas been quoted by the learned Single Judge, the learned Judge relying on
\nRaj Kumar & Ors. v. Shakti Raj & Ors. [(1997) 9 SCC 527] went on to
\nhold:\n<\/p>\n
“In such circumstances, the court is of the view that in the facts
\nof the present case it would not be correct to refuse an
\nadjudication of the merits of the dispute raised by the
\npetitioners.”\n<\/p>\n
The learned Judge also observed that considering the enormousness of
\nthe selection process, the court would have to uphold its adjudicatory
\nmechanism to protect the inherent requirement of fairness in the
\nadministrative process and rule of law on the basis of “Basic Pleadings”
\nthereby indicating his satisfaction about the pleadings in the writ petitions
\nwhich were fiercely opposed by the State on the ground of absence of
\nproper pleadings.  Further, the learned Judge justified the interference
\nthough the writ petitions were filed by unsuccessful candidates who had
\nparticipated in selection process without demur.  Similar view as taken
\nregarding allotment of 50% marks to personal interview.  The learned
\nJudge decided to depend on the Scrutiny Committee’s reports on allotment
\nof marks to see whether the marks were awarded excessively.\n<\/p>\n
14.\tWhen we see the District-wise approach by the learned Single
\nJudge, it is apparent that in so far as Golaghat District (with which we are
\nnot concerned) is concerned, the 50 marks allotted for viva voce were
\nfurther bifurcated in the following manner:\n<\/p>\n
“1.\tEducational Qualification\t\t\t5 marks\n<\/p>\n
2.\tSmartness, general ambience\t\t5 marks\n<\/p>\n
3.\tLanguage, reading and writing\t\t10 marks\n<\/p>\n
4.\tExtra Qualifications\t\t\t5 marks\n<\/p>\n
5.\tProficiency in sports, marshal arts\t5 marks\n<\/p>\n
6.\tGeneral knowledge and oral test\t20 marks”\n<\/p>\n
It was argued before us on behalf of the Government that this was normally
\nthe pattern of interviews practically in all the Districts as the guidelines
\nwere fixed for the purpose of interviews (viva-voce) in the similar fashion
\ncommonly for all the Districts.  This was not contradicted before us and
\nindeed it cannot be, for the simple reason that it would only be the State
\nwhich could be in a position to address as to the standards fixed for the
\npurposes of viva-voce (presuming that they were so fixed).\n<\/p>\n
15.\tAs regards Barpeta District, the learned Single Judge found that the
\nregister of candidates of Barpeta was maintained only from the stage of
\ncompletion of the elimination race wherein 5540 candidates had qualified.
\nAll of them were allowed to take the physical test.  The learned Judge then
\ndeduced that 5540 candidates were interviewed in a span of 9 days.  He,
\ntherefore, came to the conclusion that the average number of candidates
\non each day was much more than the benchmark of 250 which he had
\nfixed.  He also recorded that one Minister had made written request in
\nrespect of 43 candidates but out of them only 19 were selected.  However,
\nthe learned Judge did remark that the marks secured by most of the
\naforementioned 19 candidates did not reflect award of any abnormally high
\nmarks in the viva voce test.  The learned Judge then recorded:
\n“.yet having regard to the very fragile nature of the viva voce
\nsegment of the selection on account of the participation of over
\n5500 candidates therein, I am of the view that the just and
\nproper conclusion that must be reached in the totality of the
\nfacts of the case is that the selections held in Barpeta District
\nshould receive this Court’s interference.  Accordingly, the said
\nselections are set aside.”\n<\/p>\n
16.\tAs regards Dhubri District, the learned Single Judge noted that as
\nmany as 117 posts were advertised and 3722 candidates competed for the
\nsame after being qualified for the physical test.  The learned Judge then
\nnoted, as per the report of the Amicus Curaie, that all the selected
\ncandidates had got high marks in viva voce ranging between 30 to 41 out
\nof 50 marks.  The learned Judge did not find fault with the application forms
\nof the selected candidates which were duly initialed by the concerned
\nofficers nor did he find fault with the procedure adopted.  However, the
\nlearned Judge noted that the number of candidates who were interviewed
\nduring 9 days was a “high disturbing factor” as also the award of high
\nmarks in the viva voce to the selected candidates which has an isolated
\nfeature by itself which could assume significance.  It is only on this material
\nthat the whole selection was set aside.\n<\/p>\n
17.\tLastly in respect of Sonitpur District, the learned Judge found that for
\n414 posts advertised, 12,433 candidates had applied, out of which 5399
\ncandidates were found qualified for the viva voce and all of them were also
\ninterviewed.  According to the learned Judge this by itself would be a
\ndeciding factor considering that over 500 candidates had been interviewed
\nper day.  The learned Judge did note on the basis of the report of the
\namicus curaie that no discrepancy in award of marks in the physical test
\nand award of uniform marks in the viva-voce vis-`-vis written test was
\nnoticed.  Here, however, the learned Judge chose to disagree with the
\nviews expressed by the amicus curaie and very interestingly observed:
\n“Though the marks obtained by the candidates in the different
\nsegments of the physical test have been noted in a tabulation\/
\ncompilation sheet, the entries therein are not supported by the
\ncontemporaneous records.  There are instances of a large
\nnumber of candidates who had fared well in the physical test
\nbut have scored low marks in the interview\/viva voce.”\n<\/p>\n
The learned Judge also gave example of two selected candidates being
\nunder-age.  It is on this basis that the selection of Sonitpur District was set
\naside.\n<\/p>\n
18.\tWhen the matters reached the Division Bench, the Division Bench
\nfirstly noted the findings of the learned Single Judge on the general issues.
\nIt also noted that representative notice was issued inviting the affected
\nparties, i.e., selected candidates to the proceedings before the learned
\nSingle Judge.  The Division Bench also noted the method of random
\nscrutiny of the selections in 26 Districts\/Battalions by the Scrutiny
\nCommittee.\n<\/p>\n
19.\tIt was argued generally before the Division Bench that the learned
\nSingle Judge could not have set aside the selections on the basis of the
\nreports of the Scrutiny Committee which were, admittedly, the sample and
\npartial scrutiny.  Even during the arguments before the Division Bench no
\nopportunity was given to the counsel for the appellants to examine the
\nmaterials on record and also to take the copies thereof enabling them to
\nsupport the selection of the candidates.  Regarding the aspect of non
\njoining of proper parties, i.e. selected candidates to the writ petition, the
\nDivision Bench noted the general notice directed to be issued through
\npublication by the Single Judge by his order dated 6.10.2005.  The Division
\nBench further noted in para 18 that the notice so published was vague as it
\ndid not mention the case numbers, districts, selection centres, etc.  It also
\nnoted the arguments of the appellants that though applications were made
\nby the selected candidates for impleadment in the related writ proceedings
\nand though a direction was prayed for supply of copies of the writ petition,
\nthe learned Single Judge did not pass any order and the copies of the writ
\npetition became available to the appellants only on 23.11.2005 and they
\nhad to file their Reply Affidavits even without knowing the contents of the
\nwrit petition.  The Division Bench also noted the further arguments that the
\nwrit petitions themselves were vaguely drafted.  It was, therefore, argued
\nthat the selected candidates were denied a fair and reasonable opportunity
\nof projecting their cases resulting in violation of principles of natural justice.
\nIt was pointed out that even at the time of fixing the writ petition for hearing
\non 8.11.2005, the selected candidates were, admittedly, not impleaded as
\nparties and the proceedings, therefore, suffered from serious procedural
\nlapse.  It was further argued that the learned Single Judge also fell in error
\nin directing the selected candidates to file the appropriate affidavits even
\nwithout either impleading them or ensuring that the copies of the writ
\npetitions were served on them.  It was also pointed out that the reports
\nprepared by Amicus Curaie and the three judicial officers on the basis of
\nthe sample scrutiny made by them were not made available to the selected
\ncandidates and, therefore, the learned Single Judge erred entirely in relying
\non those Scrutiny Reports.\n<\/p>\n
20.\tPer contra, the submissions made on behalf of the appellants were
\nopposed by the writ petitioners and it was reiterated that no prejudice was
\ncaused to the selected candidates and no such grievance was made
\nbefore the learned Single Judge.  It was reiterated that the selection of any
\nparticular individual or individuals was not impugned but the whole
\nselection process was found faulty.\n<\/p>\n
21.\tThe Division Bench noted its own earlier order dated 4.10.2005
\nwhereby the earlier appeals were disposed of and a further direction was
\ngiven that the parties were at liberty to take recourse to provisions of Order
\n1 Rule 10 as also the other provisions in the CPC and the issue was left
\nopen to the learned Single Judge to direct publication of notice in
\nnewspapers so that the interested parties could appear in the proceedings
\nif they so desire.  The Division Bench in para 27 of its judgment noted
\nabout such notice having been published in the leading newspapers of
\nAssam as also the order passed by the learned Single Judge to publish the
\nlist of selected candidates on or before 19.10.2005.  It also noted that on
\n8.11.2005, the learned Single Judge had found that in the notice of
\nproceedings published in the issue dated 19.10.2005 of the local daily
\nAssam Tribune, the date of hearing had not been mentioned and,
\ntherefore, the date of hearing was directed to be published in daily
\n“Asomiya Pratidin” to be 17.11.2005.  The Division Bench also noted the
\nsubsequent orders passed by the learned Single Judge allowing the
\nimpleadment which began after the second week of November, 2005 and
\ncontinued upto the last week of November, 2005 during which the hearing
\nalso took place and the judgment ultimately came to be delivered on
\n12.12.2005.  The Division Bench further held that all the selected
\ncandidates had been duly heard on relevant aspects of controversy and
\nthat they had expressed no grievance regarding the non impleadment or
\ndelayed impleadment or refusal of copies though prayed and applied for
\nand as such they had waived their objections.  In para 30 it was argued
\nthat:\n<\/p>\n
“They obviously chanced favourable decision without any
\nreservation in this regard and thus had waived any objection
\non the above counts.  On this consideration alone their present
\nturn around apparently lacks bonafide.  In view of their
\nomission to point out to the learned Single Judge the factum of
\nnon receipt of the copies of the writ petition and non
\nimpleadment in the proceedings during the pendency thereof,
\nthey are now estopped from raising these pleas of this point of
\ntime.”.\n<\/p>\n
22.\tThe Division Bench in para 32 observed that no prayer was made by
\nany parties seeking a copy of the reports of the Amicus curaie or of the
\njudicial officers assisting the court in the inspection of the records.  It,
\ntherefore, recorded a finding to the effect that:\n<\/p>\n
“.we do not feel persuaded to sustain the cavil of the
\nappellants bearing on denial of opportunity of effective and
\nmeaningful participation in the proceedings to their prejudice.”\n<\/p>\n
In paras 35 to 43 of its Judgment, the Division Bench took note of the
\nfollowing cases:\n<\/p>\n
i)\tGeneral Medical Council v. Spackman [1943 AC 627]\n<\/p>\n
ii)\tTaylor v. National Union of Seaman [(1967) 1 WLR 532]\n<\/p>\n
iii)\tGarland v. British Rail Engineering Ltd. [(1969) 1 WLP
\n1041,\n<\/p>\n
iv)\tWalter Annamunthodo vs. Oilfields Workers’ Trade Union<\/a>
\n[1961 SE 945]\n<\/p>\n
v)\tChief Constable of the North Wales Police vs. Evans
\n[(1982) 1 WLR 1155,\n<\/p>\n
vi)\tB. Surinder Singh Kanda v. Government of the Federation
\nof Malaya [(1962) AC 322]\n<\/p>\n
vii)\tHadmor Products Ltd. & Ors. v. Hamilton and another
\n[(1983) AC 191]\n<\/p>\n
viii)\tCanara Bank and others v. Debasis Das and others<\/a> [(2003)
\n4 SCC 557].\n<\/p>\n
All the above decisions were distinguished in para 44 on the ground that
\nfoundational facts were different.  The Division Bench held:
\n“The requirement of adherence to the exigency of the fair
\nprocedure notwithstanding the attendant facts do not buttress
\nthe appellants plea based thereon.  Additionally, while in those
\ncases, the adjudicative process pertained to issues concerning
\nindividuals, the scrutiny in the instant case relates to a
\nmammoth exercise of appointment to 5486 posts in public
\nservice.”\n<\/p>\n
It ultimately held that the deficiency in the pleadings on the grounds of
\nchallenge, if any, in the writ petitions in the above premise cannot be
\nconstrued to  be fatal.  It further held that by the same analogy in view of
\nthe unqualified participation of the selected candidates in the proceedings,
\ntheir plea of non impleadment therein and denial of the copies of the writ
\npetitions does not merit acceptance.   The Division Bench further condoned
\nthe non passing of the individual orders on the impleadment applications
\nand recorded its findings in para 46 to the following effect:
\n“On an overall consideration of the emerging facts and the
\ndocuments on record, we are of the unhesitant opinion that the
\nprocedure adopted by the learned Single Judge in conducting
\nthe proceedings is not in derogation of the established
\nprinciple of natural justice and fairness in judicial
\ndetermination.  This plea, therefore, fails.”\n<\/p>\n
The Division Bench then referred to the exercise undertaken between
\n21.9.2006 and 16.10.2006 pertaining to the examination of the records by
\nthe Bench in presence of the counsel for the parties.  It further noted that
\nno objections were raised by the counsel.  The Division Bench ultimately
\nheld in para 48 as under:\n<\/p>\n
“In the above premise, the learned counsel for the parties
\nhaving been afforded all reasonable opportunities of
\nconsulting the records and highlighting grievances, if any on
\nthe issues of impleadment, non supply of copies of the writ
\npetition etc., in course of the hearing of the appeals and they
\nhaving chosen not to avail the same, the plea of want of
\nfairness is of no consequence on this ground as well.”\n<\/p>\n
23.\tIn para 52 the Appellate Court raised the question as to what should
\nbe the ideal number of candidates who could reasonably and practically be
\ninterviewed on a day.  The Division Bench observed that this question
\nwould have to be considered in the context of large number of candidates
\nas high as more than 2,000 on a single day vis-`-vis the candidates within
\nthe benchmark adopted by the learned Single Judge (250 per day).  State’s
\naffidavit was referred to and it was noted in para 53 that even therefrom it
\nis apparent that at best 8 hours on a day could be utilized for the interview.
\nThough it was claimed by the State that the interviews at times were taken
\nspending 8 to 15 hours a day.  It was held that if 15 hours are spent in a
\nday, it would not be reasonably practicable and that by itself may lead to
\nthe inference of a farcical selection.  After extensively quoting from the
\ncircular letter No.3  Police dated 3rd May, 1971 issued by IGP, Assam
\nregarding the policy with regard to recruitment of the rank of Constables,
\nthe Division Bench observed in para 56 that “while good physique and
\nbearing cannot be sacrificed, at the same time, the mental caliber for
\nrecruitment to the constabulary cannot be compromised”.  The Division
\nBench then endorsed:\n<\/p>\n
“Although an argument was advanced that provision for 50%
\nmarks for interview was in the higher side giving scope for
\nmaneuvering the selection, but the learned Single Judge on
\nan overall consideration of the matter has come to the
\nconclusion that prescription of 50% marks for the interview is
\nacceptable.”\n<\/p>\n
In the same para it went on to observe:\n<\/p>\n
“To judge a candidate on his mental faculties, alertness,
\ngeneral knowledge, general bearing and knowledge of
\nlanguage, etc., some amount of interaction with the candidate
\nby the members of the Selection Board will be always
\nrequired and it cannot be an affair of some moments and,
\ntherefore, there was a necessity to fix the number probable
\ncandidates who could be interviewed effectively in a day
\nwithin the hours indicated in the affidavits which hours also
\ncould not be at a stretch but had to be with intervals of tea
\nbreaks, lunch breaks, etc.”\n<\/p>\n
The Division Bench then proceeded to decide as to how many
\ncandidates could be interviewed in a day.  The Division Bench then took
\nstock   of   the  reported  decision  in   Satpal & Ors.  v.  State  of
\nHaryana & Ors.<\/a>   [(1995)  Suppl.  1  SCC  206],    Ashok Kumar
\nYadav v. State of Haryana [(1985) 4 SCC 417] argued on behalf of the
\nwrit petitioners as also noted the law laid down in Sardara Singh v. State
\nof Punjab [(1991) 4 SCC 555] and came to the conclusion on the basis of
\nthe law laid down in the above mentioned cases that the claim of three
\nminutes per candidate, as was accepted in Sardara Singh’s case was not
\nfeasible and in the present case minimum five minutes will be required for
\nthe realistic appraisal of the candidate.  If that was done then the interview
\nof 300 candidates would require 15 hours.  Ultimately, the Division Bench
\nrecorded a finding that the learned Single Judge had correctly fixed
\nbenchmark of 250 candidates to be interviewed in a day and at times it
\ncould even be stretched to 300 candidates a day.  It was on this basis, the
\nDivision Bench then proceeded to examine the individual District and found
\nfault with the selection process in Dhubri, Barpeta and Sonitpur Districts on
\nthe ground that the candidates interviewed were more than the benchmark
\nfixed and also noted other alleged irregularities in the matter and
\nproceeded to set aside the selection in those three Districts.\n<\/p>\n
24.\tWe have already indicated above that we are concerned with the
\nabove mentioned three Districts only.  We will, therefore, consider the
\nselection process in these three Districts in the light of the observations
\nmade by the learned Single Judge as also the Division Bench in the
\nappeals.  But before that we must take stock of the arguments by the
\nlearned counsel on behalf of the appellant as also the arguments by the
\nState which though has not filed appeal, has chosen to support the
\nappellants for the obvious reasons as also the other concerned parties.\n<\/p>\n
25.\tWe have deliberately referred to the findings of the learned Single
\nJudge as well as the Division Bench as we are convinced from those
\nfindings that the only ground on which the selections were set aside was
\nthe factual situation that the number of candidates interviewed were
\nenormous and as such the personal interview and more particularly the
\nviva-voce was a farce, having been completed only by way of a formality
\ndue to the shortage of time and hence the selections made on the basis of
\nfarcical viva voce could not answer the test of objectivity and
\nreasonableness.\n<\/p>\n
26.\tHowever, since the courts below referred to the other defects in the
\nselection process, we would take a stock of those findings.  It was firstly
\nurged by way of a complaint against these interviews that the dates were
\nchanged and that was done in order to meet the political goals on the part
\nof some leaders.  We do not think that this complaint was justified. Firstly
\nthere were no proper pleadings with the necessary details before the
\nlearned Single Judge.  Secondly how the postponements affected the
\nselection process is nowhere displayed and further which political leaders
\nwere responsible for such postponements of the interview dates had also
\nnot been pleaded.  On the other hand it was found from the records that
\nthe postponement were on account of Asian Car Rally, Kali Puja, Diwali
\nand Id festivals.  If that was so, we do not find any reason to hold against
\nthe selection process and indeed though we find some murmur in the
\njudgments appealed against, we do not see any definite finding that such
\npostponements affected the selection process.  The very fact that there
\nwas a huge turn out in each District suggests the hollowness of the claim
\nthat the selection process was affected because of the postponements.
\nWe, therefore, do not think that anything was wrong in postponing the
\ninterview dates.  Similarly, we are also not impressed with the complaint
\nthat the District-wise restrictions were removed by the Government by its
\nletter dated 16.11.2004 apart from the fact that both the courts have not
\ncommented on this aspect adversely against the selection process.  We
\nare of the opinion that, that by itself cannot be a reason to find fault with the
\nselection process, again on the ground that the petitioners were not able to
\nshow as to what prejudice was caused because of the removal of such
\nstep taken by the Government on 16.11.2004.  On the other hand we are of
\nthe clear opinion that the Government had made the selection process
\nbroader by removing the District-wise restrictions.  As regards, the
\ncomplaint that 50 marks were allotted for the personal interview or viva
\nvoce, the learned Single Judge as well as the Division Bench have found
\nthat in the peculiar circumstances it was of no consequence.  We also
\nendorse this view as no arguments were addressed on this point before us.
\nTherefore, even that complaint has to go.  In the earlier part of this
\njudgment we have already noted that these 50 marks were also distributed
\non as many as six factors and each factor had separate marks.  The oral
\ntest, after the distribution of the marks over the factors like educational
\nqualifications, smartness, general ambience in reading, writing, extra
\nqualifications, proficiency in sports and martial arts, is only left with 20
\nmarks which, in our opinion, is quite reasonable.  We do not, therefore, find
\nanything wrong on account of the allotment of 50 marks for viva voce.  This
\nis apart from the fact that the unsuccessful candidates, after having taken
\npart in the interview process could not turn back and call names to the
\nsystem.\n<\/p>\n
27.\tWe are, therefore, left with only one major contention regarding the
\nenormousness of the number of candidates interviewed and the possible
\ninability on the part of the interview board to complete the interviews in a
\nproper manner.  We would, therefore, proceed to consider this aspect in
\ndetail.\n<\/p>\n
28.\tThe basis of the contention regarding this factor made by the writ
\npetitioners was the paucity of time.  Based on the factors like the available
\ntime, the general requirements for assessing an individual candidate for the
\npost of Constable, the number of persons available for holding the
\ninterviews, the leaned Single Judge had come to a finding that every Board
\non one day could, at the most, interview 250 candidates.  The Division
\nBench also seems to have endorsed this view.  We have very carefully
\nexamined the contentions raised by the appellant herein and also the
\nmaterial provided by the State through its counter affidavits as also the plea
\nraised by the officers who actually held the interviews in respect of the
\nconcerned three Districts of Dhubri, Barpeta and Sonitpur.  But before we
\ngo into the exercise of considering the situation in these three Districts
\nindividually, we must consider the benchmark fixed by the learned Judge at
\n250 candidates per day.  We are afraid we cannot uphold that finding.
\nLearned Single Judge as well as the Division Bench seem to have
\nproceeded more on imagination than the reality.  Such a benchmark could
\nnot have been fixed generally and only because that benchmark was
\nallegedly breached, the selection could not have been found fault with in a
\nmechanical and mathematical manner.  Instead of testing the matter on the
\nbasis of the ground realities for each District on the basis of material made
\navailable by the State, a mechanical approach, in our opinion, could not
\nhave been taken by the High Court.\n<\/p>\n
29.\tThe Courts below seems to have relied upon Satpal’s case (supra).
\nThat was a case regarding the selection of Patwaris who obviously have a
\nentirely different and more onerous duties than those of the constables in
\npolice.  A Patwari is a basic Revenue Officer in the village and has to
\nmaintain the revenue records.  In para 6 this Court observed that:
\n“Even if one were to  assume that the committee devoted
\nas many as 12 hours i.e. from 9.00 a.m. to 9.00 p.m. on a
\nsingle day for interviewing candidates it would not be able to
\ndevote more than two minutes’ time per candidate.”\n<\/p>\n
It was on the above basis that it was found that it was impossible for the
\nauthorities to conduct the interviews of as many as 400-600 candidates in a
\nsingle day.  The Court also observed, considering the shortest time
\navailable to interview, that:\n<\/p>\n
“It is difficult to hold that the interviews were meaningful and
\npurposive to enable proper assessment of the knowledge and
\nsuitability of each candidate for the post”.\n<\/p>\n
In our opinion these observations would be most apposite in respect of the
\nselection of a Patwari who is required to have the knowledge regarding the
\nrecords, etc.  Such is certainly not the requirement for the constables.\n<\/p>\n
30.\tIn Ashok Kumar Yadav’s case (supra) this question did not come.
\nThat was a case more particularly of bias.  Aspersions on character,
\nintegrity and competence of Chairman and members of State Public
\nService Commission were made in that case.  At any rate the interviews
\nheld in that case were for the selection to the Judicial Service and,
\ntherefore, the nature of the interview was entirely different.
\n31,\tHowever, in Sardara Singh’s case (supra), this Court specifically
\nobserved in para 6:\n<\/p>\n
“The selection is for the Patwaris in the class III service.
\nThe ratio in Ashok Kumar Yadav v. State of Haryana [(1985)
\n4 SCC 417] has no application to the facts in the case.
\nTherein the selection was to the Class I service of the State
\nService and sufficient time was required to interview each
\ncandidate.  In this case, on calculation, we found that on an
\naverage three minutes were spent for each candidate for
\nselection.  Rule 7 of the Rules provides the qualifications,
\nnamely, pass in the Matriculation or Higher Secondary
\nExamination; knowledge in Hindi and Punjabi upto the Middle
\nStandard and good knowledge of rural economy and culture.
\nThe educational qualifications are apparent from record and
\nneed no interview in this regard.  It could be seen that
\ncandidates normally hailing from rural backgrounds had
\npresumptively good knowledge of rural economy and culture.
\nTherefore, there is no need for special emphasis to ascertain
\ntheir knowledge of the rural economy or culture.  Under those
\ncircumstances much time need not be spent on each
\ncandidate for selection except asking some questions on
\ngeneral knowledge and aptitude for work as Patwari etc.”\n<\/p>\n
The observations are extremely telling and need no further elaboration.  In
\nthe present case the qualifications were known.  The physical standards of
\neach candidate were very much there before the interviewing board and,
\ntherefore, in our opinion, there was no necessity to test the knowledge of
\nmaintenance of revenue records, rural economy and culture as was
\nrequired for the post of Patwari.  The merits of the candidates were also
\nrecorded regarding their physical efficiency.   Therefore, even less than
\nthree minutes time was enough for each candidate.  We would also have to
\ngive due credit to the expertise of Selection Committee.\n<\/p>\n
32.\tThe question of large number of candidates appearing for the
\nselection process again came up before this Court in Joginder Singh and
\nothers v. Roshan Lal and others [(2002) 9 SCC 765].  A complaint was
\nmade in this case that 323 candidates appeared for the test in two days
\nand on that basis a select list was prepared by the Departmental Promotion
\nCommittee.  The High Court called this selection process as a farce on the
\nground that fair chance was never given to the candidates to show their
\nworth.  The Court observed in para 5 as under:\n<\/p>\n
“On the facts on record we see no justification for the High
\nCourt to have come to this conclusion.  The High Court in
\nexercise of its jurisdiction under Article 226 of the Constitution
\nis not supposed to act as an Appellate Authority over the
\ndecision of the Departmental Selection Committee.  If the
\nCommittee has been properly constituted, as in this case, and
\nthe post is advertised and a selection process known to law
\nwhich is fair to all, is followed then the High Court could have
\nno jurisdiction to go into a question whether the Department
\nSelection Committee conducted the test properly or not when
\nthere is no allegation of malafides or bias against any member
\nof the Committee.  Merely because there were a large number
\nof candidates who appeared on two days, cannot ipso facto
\nlead to the conclusion that the process of selection was a farce
\nand fair chance was not given.  Normally experienced persons
\nare appointed as members of the Selection Committee and
\nhow much time should be spent with a candidate would vary
\nfrom person to person.  Merely because only two days were
\nspent in conducting the interviews for the selection of Class IV
\nposts cannot lead to the conclusion that the process of
\nselection was not proper.”\n<\/p>\n
33.\tTo sum up, these were the interviews for the post of Constables and
\nthe minimum educational standard was prescribed as 7th class pass.
\nThere were no requirements of testing the administrative or management
\ncapacity of the candidates and\/or any other quality which is required for the
\nhigher posts.  All that was necessary was firstly to see their physical fitness
\nin terms of physical endurance, their smartness in appearance and further
\nto test their intelligence level as required for the post of constable including
\ntheir general knowledge.  We cannot ignore that thousands of candidates
\nhad turned up and what we find from the guidelines was, firstly these
\ncandidates had to fulfil physical standards in terms of height, etc., as also
\nthe minimum educational qualification.  Obviously all the candidates could
\nnot have had those physical standards.  It is apparent from the records that
\nthe task of conducting measurement for fixing the physical standards was
\ndistributed on all the centres amongst number of other helping staff.  Once
\nthey crossed this barrier of physical standards and minimum educational
\nqualification as also the race of 1.60 kms. in the case of men and 0.80 in
\nthe case of women, they were to proceed for the further physical tests.
\nThis exercise, in our opinion, was not as time consuming and could have
\nbeen done collectively also for the simple reason that every candidate was
\nnot asked to run the race individually. That would certainly be a team event
\nwhere several candidates could run at the same time in group.  To
\ncomplete the race in a particular time could not, in our opinion, require
\nhours together.  The subsequent physical test of high jump, long jump and
\nsprint of 100 mtrs., etc., would be restricted only to those candidates who
\nhad successfully met their physical standards and educational
\nqualifications and their number would definitely reduce.  The further
\nfiltration for the viva voce test was more substantial as the number of
\ncandidates who could pass the exacting standards in high jump, long jump
\nand the sprint could not have been more.  It is at this stage that the
\nremaining candidates were interviewed for their viva voce.  This is apart
\nfrom the fact that the courts below did not have any tangible evidence
\nregarding the interviews being farcical except the self-serving statement
\nmade by the unsuccessful candidates in the writ petitions.  The learned
\nJudges even did not have the reasons for which the unsuccessful
\ncandidates were rejected.  We, therefore, do not see any reason as to how
\na concrete finding could have been given that the selection board could
\ninterview only 250 candidates per day and not more.\n<\/p>\n
34.\tOnce this barrier is cleared, the mechanical test adopted by the
\nlearned Single Judge and the Division Bench must go and the matters
\nwould have to be decided on the basis of the ground realities as presented
\nbefore us.\n<\/p>\n
DHUBRI DISTRICT\n<\/p>\n
35.\tOur attention was invited by the learned Senior Counsel Shri Rajiv
\nDutt to the counter affidavit filed by the State in respect of the selections
\nmade in District Dhubri.  The counter is supported by the affidavit of Shri
\nJoydip Shukla, Extra Assistant Commissioner which suggests that a Board
\nwas constituted under the Chairmanship of Shri P.K. Dutta, Superintendent
\nof Police, Dhubri, Shri N. Borah, APS, Asstt. Commandant 20th IR
\nBattalion, Panbari and Dr.N. Amin, Senior Medical & Health Officer, Dhubri.
\nThey were to execute the task as per the Notification No.FB\/1\/98\/2004\/1
\ndated 21.8.2004.  The said notification dated 21.8.2004 is on record.  The
\naffidavit further suggests that a meeting was held on 20th October, 2004 in
\nconnection with the Recruitment Rally for the post of constables wherein it
\nwas decided to constitute sub-committees and accordingly the sub-
\ncommittees were constituted including interview board for the post of viva
\nvoce test.  The affidavit goes on to say that since there were large number
\nof candidates, it was impossible for a single interview board to complete
\nthe interviews and, therefore, four tables for interviewing the candidates
\nwere arranged and each table was to be headed by a Gazetted Officer who
\nwas explained the modalities of the interview.  The names of the four
\nGazetted Officers, heading the interview panel on each table, were (i) Shri
\nP.K. Dutta, APS, Superintendent of Police, Dhubri, Chairman of the Board;\n<\/p>\n
(ii) Shri N. Borah, Asstt. Commandant, 20th IR Battalion, Panari, Member;\n<\/p>\n
(iii) Shri A.K. Bose, APS, Dy. Superintendent of Police (DSB), Dhubri; (iv)
\nShri R.C. Medhi, APS, Asstt. Commandant, 20th I.R. Battalion, Panbari.
\nThe affidavit also goes on to say that a board which has already been
\nreferred to earlier for final selections was also constituted consisting of Shri
\nP.K. Dutta, Shri N. Borah and Dr.N. Amin.  It is suggested that the
\nguidelines dated 2.9.2004 were issued prescribing the procedure to be
\nfollowed during the Recruitment Rally which was issued by the State-
\nrespondents and it is further asserted that the said guidelines were strictly
\nadhered to.  The affidavit further goes on to suggest that the process of
\ninterview was started at 8.00 a.m. and continued till late in the day.
\nHowever, the viva voce tests slated for 4th and 5th December, were
\ncontinued on the following days, i.e., on 5th and 6th December, 20004 and
\nthe number of candidates selected for viva voce test were barely 601 on 4th
\nDecember and 1068 for 5th December.  It is asserted that the candidates
\nwere interviewed by each table of Interview Board.  It is then pointed out
\nthat after conducting the interviews for 3722 candidates for a period of nine
\ndays, ultimately 178 candidates were selected for appointment out of which
\n85 vacancies were for the post of constable in the District of Dhubri and 93
\nin the 20th I.R. Battalion and the final selection list was affixed on the Notice
\nBoard on 3.2.2005.  It is in this manner, that the interviews were held in
\nDhubri.  It is seen from the minutes of the meeting dated 20th October,
\n2004 that it was attended by as many as 23 personnel and in that the
\nwhole procedure for holding the interviews was finalized by creating a
\nReception Counter, then holding the elimination race, then the
\ndocumentation, the physical test and ultimately the viva voce.  The detailed
\nchart suggests that as many as 22 Reporting Centres were created for
\nwhich different officers were appointed; two constables were to act as the
\nescorts of the candidates, while as many as 26 persons were engaged for
\nholding the elimination race; for documentation as many as 93 personnel
\nwere named even for the subsequent events of physical test, long jump six
\npersonnel were appointed, for high jump 9 personnel were appointed and
\nfor 100 meters sprint further 9 personnel were appointed.  Ultimately for
\nviva voce 2 personnel were named being Shri P.K. Datta and Shri A.K.
\nBose, both APS Officers.  Not only this, the standard marks to be given for
\nthe physical tests and even the basic minimum standard accepted is also
\nseen from Annexures A and B from the chart.  This suggests the
\nsystematic way in which the whole interview process went on in Dhubri.\n<\/p>\n
36.\tLearned Single Judge in his judgment has observed that as per the
\nreport of the Amicus Curaie the selected candidates got higher marks in
\nviva voce ranging between 30 to 41 marks.  In our opinion this has hardly
\nany effect and merely because the selected candidates got the higher
\nmarks ranging between 30 to 41 marks that by itself could be no reason to
\nreject the selection.  We have extensively referred to the comments made
\nby the learned Single Judge in the earlier part of the judgment where the
\nlearned Judge has in fact recorded his satisfaction for the printed charts
\nand more particularly about their authenticity.  The learned Judge had also
\nexpressed his satisfaction with the procedure adopted.  There is hardly any
\nreason given by the learned Single Judger excepting that the benchmark of
\n250 candidates had already been crossed.\n<\/p>\n
37.\tThe treatment given by the Division Bench is no different.  The
\nDivision Bench has also gone by the mechanical test of benchmark of 250
\ncandidates.  The Division Bench seems to have taken an exception to the
\nproceedings dated 4.12.2004 and 5.12.2004.  That is by far the only reason
\ngiven by the Division Bench for upholding the finding of the Single Judge.
\nNo court has, however, considered the ground realities which we have
\nalready shown as per the counter affidavit which has remained
\nuncontroverted before us.  We are, therefore, convinced that the only
\nreason given by the courts below could not be said to be a deciding factor
\nfor setting aside the selection.\n<\/p>\n
BARPETA DISTRICT\n<\/p>\n
38.\tThe story regarding Barpeta District does not appear to be any
\ndifferent.  Shri Dholakia, Senior Counsel took us through the counter
\naffidavit filed on behalf of the State wherefrom it is apparent that a
\nSelection Board was constituted for Barpeta District consisting of one Shri
\nB.B. Chetry, APS, the then Superintendent of Police, Barpeta District as its
\nChairman and Shri D. Upadhaya, APS, the then Commandant, 4th APTF
\nBn., Barpet District as its Member.  The affidavit further goes on to suggest
\nthe names of the members of the sub-committees for conducting the
\nelimination race and for other events.  In so far as elimination race is
\nconcerned, two police personnel, namely, ABSI Pramod Das and Hav.
\nClerk Altaf Hussain were appointed.  As for documentation and
\nmeasurement a team of 13 personnel was named so also for 100 meters
\nrace, long jump and high jump, there appears to be a team of two
\npersonnel each.  It is then asserted that in all 5540 candidates appeared
\nbetween 3rd December to 8th December and interviews were started at 6.30
\na.m. and lasted till 8.30 p.m. giving clean 14 hours to the Selection
\nCommittee.  It is pointed out that out of 5540 candidates 1815 candidates
\nwere selected on being eligible\/physically fit to appear for viva voce.  It is
\nthen pointed out that candidates who were left out of the viva voce test due
\nto shortage of time on the date of selection were called on 9.12.2004 and
\n10.12.2004 also.  It is asserted that this fact was reflected on the Police
\nRadiogram dated 5.12.2004 and 10.12.2004 and only the selected
\ncandidates were called to appear for personal interview on the dates fixed
\nfor that purpose.  These fixed dates were on 3rd, 4th, 5th, 6th and 7th
\nDecember, 2004 and as has already been submitted 9th and 10th
\nDecember, 2004.  It is very frankly contended in the counter affidavit that
\nthose who were left out due to paucity of time, were called on 9th and 10th
\nDecember, 2004.  The counter also goes on to explain that the interview
\nboard was alive to the considerations required for selection for the post of
\nconstables and as such it was sufficient to test the candidates on the basis
\nof their physical capability and agility.  It is then contended that in viva voce
\nrandom questions were put to the candidates considering the time
\nconstraints to ascertain their minimum intelligence level which a constable
\nis required to possess.  The copies of the documents like the Memo dated
\n2.12.2004, Memo dated 3.9.2005, Police Radiograms dated 5.12.2004 and
\n10.12.2004 are annexed to the counter affidavit which go on to suggest the
\ngenuineness of the claim by the State Government supporting the
\nselections.\n<\/p>\n
39.\tShri Dholakia painstakingly took us through the judgments of the
\nlearned Single Judge as well as the Division Bench.  The learned Single
\nJudge seems to have gone by the simple mathematical rule of dividing
\n5540 candidates by 9 since the interview process lasted for 9 days.  He
\nseems to have relied on the rule of average.  There was one peculiar
\nfinding that as per the report of the amicus curaie a complaint was made
\nthat some candidates were selected at the written request of a Minister.
\nThe amicus curaie had initially reported that the number of such candidates
\nis three out of total 210 candidates selected.  At the hearing, however, the
\namicus curaie claimed that the said written request was in respect of 43
\ncandidates out of whom 19 candidates have been selected.  The learned
\nSingle Judge has, however, candidly held that the marks given by the 19
\ncandidates do not reflect award of any abnormally high marks in the viva
\nvoce test.  All that the learned Judge has recorded is that having regard to
\nthe “fragile nature of the selection” it would be just and proper conclusion to
\nset aside the selections made in Barpeta.  We are not at all satisfied with
\nthis kind of general and casual remarks.  This is apart from the fact that
\nthere is nothing to suggest that in reality any recommendations were made.\n<\/p>\n
40.\tThe story of the Division Bench is again no different.  The Division
\nBench has given the daily break up of the candidates interviewed on each
\nday and without making any distinction, has proceeded to hold that merely
\nbecause the number of candidates exceeded on particular days, the said
\n“benchmark”, the selection was bad.  We are not convinced with this.\n<\/p>\n
SONITPUR DISTRICT\n<\/p>\n
41.\tAs regards Sonitpur District also the counter suggests that there was
\na Selection Board consisting of Shri Nitul Gogoi, APS, Superintendent of
\nPolice, Sonitpur, Tezpur as its Chairman, Shri Dwijendra Nath Sarma, APS
\nAsst. Commandant, 12th AP Bn., Jamugurihat as its Member and Dr.(Mrs.)
\nDipti Baruah, Senior Medical & Health Officer, Biswanath Chariali PHC as
\nits Member.  As in the other counters, the minutes of the pre-selection
\nmeeting in this case held on 30th November, 2004 have been referred to.
\nFigures which are given are that out of 12,433 candidates 4319 were only
\nfound to be qualified and appeared for the interview.  It is pointed out that
\non 3rd December, 2004 out of 1365 candidates 489 candidates only
\nqualified and appeared for viva voce and medical test.  The number given
\non the other dates are that on 4th December 757 out of 1676 candidates;
\non 5th December 558 out of 1602 candidates; on 6th December 602 out of
\n1892 candidates; on 7th December 473 out of 1081 candidates; on 8th
\nDecember 1175 out of 2169 candidates; on 9th December 536 out of 1066
\ncandidates ; on 10th December 709 out of 1192 candidates and on 11th
\nDecember 91 out of 391 candidates came for the interviews after passing
\npreliminary rounds.  A clear cut assertion is made that the candidates
\nappearing for viva voce were only those who had passed the physical test.
\nIt is pointed out further that more credence was given to the physical
\nfitness and the agility of the candidates since that was the main essence to
\ndischarge the duties of a constable.  Again it is asserted that random
\nquestions were put to the candidates in viva voce so as to ascertain their
\nminimum intelligence level.  The documents explaining the counter seem to
\nsupport the said facts.  Learned counsel heavily relied on Annexure R-3,
\nthe Minutes of the meeting dated 30.11.2004 as also the Minutes of the
\nmeeting held on 3.2.2005.\n<\/p>\n
42.\tLearned Single Judge has hardly given any reasons and has
\nrecorded that a large number of candidates who were failed in physical test
\nwere being given low marks in the interview.  Two examples have been
\ngiven of one Mridul Bora and Diganta Das who were under-age but were
\nselected.  We have nothing to say about these two selections and if they
\nwere not within the proper age limit, the learned Judge was undoubtedly
\nright in setting aside their selection.  But that could not be a reason by itself
\nto set aside the whole selection of more than 400 candidates.  There is
\nabsolutely no reference to any ground facts and the learned Judge seems
\nto have relied wholly on the views expressed by the Amicus Curaie.  A
\ncurious statement has been made to the following effect:
\n“Though the marks obtained by the candidates in the different
\nsegments of the physical test have been noted in a
\ntabulation\/compilation sheet, the entries therein are not
\nsupported by the contemporaneous records.”\n<\/p>\n
We wonder as to what such contemporaneous record could be.  Anyway,
\nthe only reason appears to have been weighed with the learned Single
\nJudge was the crossing of the benchmark of 250 candidates.\n<\/p>\n
43.\tThe treatment of the Division Bench is identical.   The Division Bench
\nhas found out a pattern in selection and commented that the candidates
\nwho secured higher marks in the physical test, i.e., above 40 and upto 46,
\nwere awarded abnormally low marks i.e., marks ranging from 7 to 20 and
\nthereby these candidates were ousted from consideration.  The marks
\nwere found to be over-written\/interpolated in respect of all the candidates
\nand not a single instance was found free from such impairment.  The
\nDivision Bench has given few examples in para 153 where the marks were
\nsubstantially changed and reduced to reject those candidates.  Some
\nfurther defects were found that the candidates were not awarded marks for
\n100 meter race which had been completed within the permissible limit.
\nTwo such examples were cited by the Division Bench.  So also it is
\ncommented that some candidates were not given proper marks and were
\nnot allowed to cross the benchmark.  It is on this basis that the selection
\nhas been set aside, of course again considering the crossing of the
\nbenchmark of 250 candidates a day.  In our opinion the exercise
\nundertaken of scrutinizing the marks allotted to each and every candidate
\nwas unnecessary and unwarranted since in the petition no such assertions
\nwere made.\n<\/p>\n
44.\tIt is settled law that in such writ petitions a roving inquiry on the
\nfactual aspect is not permissible.  The High Court not only engaged itself
\ninto a non permitted fact finding exercise but also went on to rely on the
\nfindings of the Amicus Curaie, or as the case may be, the Scrutiny Team,
\nwhich in our opinion was inappropriate.  While testing the fairness of the
\nselection process wherein thousands of candidates were involved, the High
\nCourt should have been slow in relying upon such microscopic findings.  It
\nwas not for the High Court to place itself into a position of a fact finding
\ncommission, that too, more particularly at the instance of those petitioners
\nwho were unsuccessful candidates.  The High Court should, therefore,
\nhave restricted itself to the pleadings in the writ petition and the say of the
\nrespondents.  Unfortunately, the High Court took it upon itself the task of
\nsubstituting itself for the Selection Committee and also in the process
\nassumed the role of an Appellate Tribunal which was, in our opinion, not
\nproper.  Thus, the High Court converted this writ petition into a public
\ninterest litigation without any justification.\n<\/p>\n
45.\tIt is also a settled position that the unsuccessful candidates cannot
\nturn back and assail the selection process.  There are of course the
\nexceptions carved out by this Court to this general rule.  This position was
\nreiterated by this Court in its latest judgment in Union of India & Ors. v. S.
\nVinod Kumar & Ors<\/a> [(2007) 8 SCC 100] where one of us (Sinha, J.) was a
\nparty.  This was a case where different cut off marks were fixed for the
\nunreserved candidates and the Scheduled Caste and Scheduled Tribes
\ncandidates.  This Court in para 10 of its judgment endorsed the action and
\nrecorded a finding that there was a power in the employer to fix the cut off
\nmarks which power was neither denied nor disputed and further that the cut
\noff marks were fixed on a rationale basis and, therefore, no exception could
\nbe taken.  The Court also referred to the judgment in Om Prakash Shukla
\nv. Akhilesh Kumar Shukla & Ors.<\/a> [(1986) Supp. SCC 285] where it has
\nbeen held specifically that when a candidate appears in the examination
\nwithout protest and subsequently found to be not successful in the
\nexamination, the question of entertaining the petition challenging such
\nexamination would not arise.  The Court further made observations in para
\n34 of the judgment to the effect:\n<\/p>\n
“There is thus no doubt that while question of any estoppel by
\nconduct would not arise in the contextual facts but the law
\nseem to be well settled that in the event a candidate appears
\nat the interview and participates therein, only because the
\nresult of the interview is not ‘palatable’ to him, he cannot turn
\nround and subsequently contend that the process of interview
\nwas unfair or there was some lacuna in the process.”\n<\/p>\n
In para 20 this Court further observed that there are certain exceptions to
\nthe aforementioned rule.  However, the court did not go into those
\nexceptions since the same were not material.\n<\/p>\n
46.\tIn our opinion the first basic thing for such a selection process would
\nbe the lack of bona fides or, as the case may be, malafide exercise of
\npowers by those who were at the helm of selection process.  Both the
\ncourts below have not recorded any finding that they found any malafides
\non the part of any of the State officials who headed the interviews.  On the
\nother hand the tenor of the judgments show that the whole process did not
\nsuffer from malafides, lack of bonafides, bias or political interference.  In
\nUnion of India & Others vs. Bikash Kumar<\/a> [(2006) 8 SCC 192] this
\nCourt observed in para 14 thus:\n<\/p>\n
“When a Selection Committee recommends selection of a
\nperson, the same cannot be presumed to have been done in a
\nmechanical manner in absence of any allegation of favouritism
\nor bias .  A presumption arises in regard to the correctness of
\nthe official act.  The party who makes any allegation of bias or
\nfavouritism is required to prove the same.  In the instant case,
\nno such allegation was made.  The selection process was not
\nfound to be vitiated.  No illegality was brought to our
\nnotice”\n<\/p>\n
47.\tThe learned Single Judge relying upon the decision in Raj Kumar &
\nOthers v. Shakti Raj & Others [(1997) 9 SCC 527] seems to have found
\nan exception to this Rule and has more particularly relied on the
\nobservation made in para 16 to the following effect:
\n“But in his case, the Government have committed glaring
\nillegalities in the procedure to get the candidates for
\nexamination under the 1955 Rules, so also in the method of
\nselection and exercise of the power in taking out from the
\npurview of the Board and also conduct of the selection in
\naccordance with the Rules.  Therefore, the principle of
\nestoppel by conduct or acquiescence has no application to the
\nfacts in this case.  Thus, we consider that the procedure
\noffered under the 1955 Rules adopted by the Government or
\nthe Committee as well as the action taken by the Government
\nare not correct in law.”\n<\/p>\n
We do not think that this case is apposite for the present controversy.  In
\nthe reported decision the court found a clear cut breach of 1955 Rules.  It
\nalso found that the names, though were required to be called from the
\nEmployment Exchange, were not so called.  The Court also found fault with
\nthe procedure involved.  We are afraid such is not the case in the present
\nsituation.  No deviation from the rules or no inherent defect in the selection
\nprocess which would render the whole selection illegal have either been
\nalleged or proved.  We have already shown in the earlier part of our
\njudgment that there were proper advertisements issued and reasonable
\nprocedure was chalked out in the earlier meetings held by the authorities,
\neven the guidelines were defined and the interviews proceeded along
\nthose guidelines.  A mere expression of doubts only on the ground of large
\nnumber of candidates appearing and their not being objectively and
\nproperly tested without any further material, in our opinion, cannot by itself
\nrender the whole selection process illegal.\n<\/p>\n
48.\tSimilarly we are not satisfied with the course taken in inviting the
\nobjections of the selected candidates who were never bothered to be made
\nparties to the writ petitions.  This Court in All India SC & ST Employees
\nAssociation and Another v. A. Arthur Jeen and Others<\/a> [(2001) 6 SCC
\n380] has stressed the necessity of joining the selected candidates as a
\nparty in paras 13 and 14 of its judgment, referring to the reported decisions
\nin Prabodh Verma v. State of U.P. [(1984) 4 SCC 251] and AMS
\nSushanth v. M. Sujatha [(2000) 10 SCC 197]. In these cases this Court
\nhas stressed the necessity of the selected candidates being joined as a
\nparty atleast in the representative capacity.  The Single Judge, after
\nrealizing the fact that the selected candidates were not joined as a party,
\nthough the selection lists were available to the petitioner, had merely
\nadvertised about the dates of hearing of the petitions and when few of the
\nselected candidates approached the High Court, they were not even
\nsupplied with the pleadings or the copies of the petitions in time.  All this, in
\nour opinion amounted to denial of an appropriate opportunity to the
\nselected candidates.  All this has been dealt with by both the courts below
\nand particularly the Division Bench in a very casual manner holding that the
\ndecisions relied on by the appellants were individual cases.  Even if they
\nwere so, the principles stated in those cases regarding the natural justice
\nwere most apposite particularly in Canara Bank’s case (supra), a
\nreference of which has been made.  In that case this Court held:
\n“Natural justice has been variously defined.  It is another
\nname for common-sense justice.  Rules of natural justice are
\nnot codified canons.  But they are principles ingrained into the
\nconscience of man.  Natural justice is the administration of
\njustice in a common-sense liberal way.  Justice is based
\nsubstantially on natural ideals and human values.  The
\nadministration of justice is to be freed from the narrow and
\nrestricted considerations which are usually associated with a
\nformulated law involving linguistic technicalities and
\ngrammatical niceties.  It is the substance of justice which has
\nto determine its form.  Principles of natural justice are those
\nrules which have been laid down by the courts as being the
\nminimum protection of the rights of the individual against the
\narbitrary procedure that may be adopted by a judicial, quasi-
\njudicial and administrative authority while making an order
\naffecting those rights.  These rules are intended to prevent
\nsuch authority from doing injustice.”\n<\/p>\n
The Court further went on to say:\n<\/p>\n
“Concept of natural justice has undergone a great deal of
\nchange in recent years.  Rules of natural justice are not rules
\nembodied always expressly in a statute or in rules framed
\nthereunder.  They may be implied from the nature of the duty
\nto be performed under a statute.  What particular rule of
\nnatural justice should be implied and what its context should
\nbe in a given case must depend to a great extent on the facts
\nand circumstances of that case, the framework of the statute
\nunder which the enquiry is held.  The old distinction between
\na judicial act and an administrative act has withered away.
\nThe adherence to principles of natural justice as recognized
\nby all civilized States is of supreme importance.” (Emphasis
\nsupplied).\n<\/p>\n
The Division Bench thus could not have condoned the non supply of copy
\nof the writ petitions prior to the hearing of the writ petitions before the
\nlearned Single Judge.  Similarly, after having noticed that the notice issued
\nby the learned Single Judge was vague and that the impleaded selected
\ncandidates were constantly crying for the copies of the writ petitions, the
\nDivision Bench could not have simply brushed aside those weighty
\nobjections.  We also do not understand the alleged stand taken by the
\ncounsel for the selected candidates before Division Bench regarding their
\nreadiness to argue.  It is for this reason that we have extensively quoted
\nthe arguments by the counsel in paras 19 to 22 of this judgment where the
\nnon supply of copies of petitions was criticised.\n<\/p>\n
49.\tWe also do not approve of the approach adopted by the learned
\nSingle Judge of the High Court as going all the way into the facts and the
\nmicroscopic details not via the pleadings of the parties but on the basis of
\nan unnecessary investigation.  We also disapprove of the logic of relying on
\nthe findings arrived at only on the basis of sample survey.  Such selection
\nof large number of candidates could not have been set aside on the basis
\nof sample survey.  No evidence was available before us as to the
\nproportion of this so-called “sample survey”.\n<\/p>\n
50.\tFor all the above reasons we hold in favour of the appellants and
\nallow the appeals, setting aside the judgments of the learned Single Judge
\nas well as the Division Bench in so far as they pertain to the three District
\nof Dhubri, Barpeta and Sonitpur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sadananda Halo & Others vs Momtaz Ali Sheikh & Others on 27 February, 2008 Author: V Sirpurkar Bench: S.B. Sinha, V.S. Sirpurkar 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-37053","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSadananda Halo & Others vs Momtaz Ali Sheikh & Others on 27 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sadananda-halo-others-vs-momtaz-ali-sheikh-others-on-27-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sadananda Halo & Others vs Momtaz Ali Sheikh & Others on 27 February, 2008 - 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