J. Pattabiraman v. K. Murugavel and Others — 1999 DIGILAW 482 (MAD)

Judgment :- V.S. SIRPURKAR, J. This judgment shall dispose of W.P. No. 16872 of 1998 filed by one J. Pattabiraman and W.P. No. 1093 of 1999 filed by the Union of Territory of Pondicherry since both the writ petitions are directed against the judgment passed by the Central Administrative Tribunal dated 24-9-1998. 2. By the instant impugned judgment, the Tribunal has allowed the original application filed by one Murugavel, son of Krishnan and has quashed the selections made by the respondent-Union of India, of as many as six candidates as the Welfare Inspectors (Adidravidar Welfare Department), Government of Pondicherry. The original petitioner before the Tribunal has now joined as party-respondent here in both the writ petitions and we shall refer him as "1st respondent" hereinafter. 3. The original application was filed mainly on the ground that the selection process for these posts, where the 1st respondent was an applicant, consisted of written examination and oral interview. It was pointed out in the application that the 1st respondent was very perfunctorily interviewed without being put any questions, and probably since he was already employed in other departments of the Government, he was not selected. Thus, initially the case pleaded before the Tribunal was that the non-selection of the 1st respondent herein was Incorrect and mala fide and probably because he belongs to the scheduled caste. The matter went before the Tribunal. After notice was issued to the Union Government on the question of interim relief, the Tribunal had also granted interim relief, wherein it was suggested that if the appointment orders were not issued, then, there would be a complete stay, but if the appointment orders were issued, then those appointments would be subject to the result of the original application. This was necessitated probably because the 1st respondent had stated that though the selections were made, yet, till the original application came to be filed, there was no appointment order issued. In short, on the date when the original application came to be filed, the 1st respondent was well aware of the fact of his non-selection, as also of the fact that as many as six other persons were already selected. Not only this, but, in his application, he also undertook to join the selected candidates as parties later on. In short, on the date when the original application came to be filed, the 1st respondent was well aware of the fact of his non-selection, as also of the fact that as many as six other persons were already selected. Not only this, but, in his application, he also undertook to join the selected candidates as parties later on. It was at this stage, a further affidavit came to be made by the 1st respondent herein to the effect that the Government of Pondicherry has issued an office memorandum, wherein it was provided that henceforth, that is, after 1-9-1998, the selection process for the selection of these Group 'C' posts would undergo a change in the sense that there shall be only 15% marks for the interview and 85% marks for the written examination. Armed with this circular dated 1-9-1998, the original applicant then raised an additional point that the whole selection process was illegal as admittedly in the new process as many as 35% marks were allotted for the interview while only 65% marks were allotted for the written test. The 1st respondent contended that this was against the judgments of the Apex Court and, therefore, the whole selection process was bound to be quashed. It seems that the Tribunal went only on the basis of the aforementioned communication/circular dated 1-9-1998 and quashed the selection process. It is this judgment of the Tribunal, which is in challenge in the aforementioned petitions. 4. W.P. No. 16872 of 1998 has been made by one of the persons, who was a selected candidate. He questions the judgment on the ground that he had no opportunity whatsoever to be heard before the Tribunal as he was not joined as a party-respondent, especially in spite of the fact that he was a selected candidate and his selection was known to the 1st respondent herein and he was affected by the result of the original application before the Tribunal. The learned Senior Counsel Mrs. Nalini Chidambaram, therefore, questions the correctness of the Tribunal's order on this ground. Besides this, the learned Counsel also questions the locus standi on the part of the 1st respondent to file the original application. 5. Mr. T. Murugesan, learned Government Pleader of Pondicherry, has addressed us on both the points, viz., the tenability of the petition and the non-joinder of all the necessary parties. Besides this, the learned Counsel also questions the locus standi on the part of the 1st respondent to file the original application. 5. Mr. T. Murugesan, learned Government Pleader of Pondicherry, has addressed us on both the points, viz., the tenability of the petition and the non-joinder of all the necessary parties. The contention of the learned Government Pleader is, that here is a case, where the 1st respondent was given a clear-cut idea that the selection process would consist of a written examination, for which there would be 65% marks and an oral interview, for which there would be 35% marks. The learned Government Pleader points out that the 1st respondent chose to appear for the written examination and was found to have qualified in the same. He then appeared for the oral interview and it is only after finding that he was not selected in the oral interview, the 1st respondent has chosen to challenge the selection process. According to the learned Government Pleader, this was not possible in the wake of the settled law by the Apex Court. The learned Government Pleader, besides this, also points out that the question of allotment of marks in the interview has been raised not in the original application, but, by way of a subsequent affidavit, that too, when the 1st respondent probably chanced to see the circular dated 1-9-1998. He submits that in fact, the original challenge was on the ground of mala fides and on the perfunctory nature of the interview. The learned Government Pleader points out that the interview was properly held, in support of which, he relies on the affidavit by the Secretary, who was a party to the interview, suggesting therein that in the Interview, the 1st respondent herein had faired very badly. The learned government Pleader further suggests that the post is of such a nature that the personality of the candidate would be extremely relevant as he is expected to inspect the implementation of various schemes meant for the betterment of the Adidravidas. According to the learned Government Pleader, therefore, such person is bound to be of very good capacity, having the capacity to take on the spot decisions and, therefore, here is a case, where the general rule laid down by the Supreme Court, restricting the marks in the interview could not be made applicable. According to the learned Government Pleader, therefore, such person is bound to be of very good capacity, having the capacity to take on the spot decisions and, therefore, here is a case, where the general rule laid down by the Supreme Court, restricting the marks in the interview could not be made applicable. The learned Government Pleader further points out that even the Tribunal has not gone on that issue. The learned Government Pleader also adopted the argument of Mrs. Nalini Chidambaram, who appears for the selected candidate in W.P. No. 16872 of 1998, of non-joinder of necessary parties. 6. Considering the impugned order, it is obvious that the Tribunal has followed the decision in Mohinder Sain Garg v. State of Punjab, wherein the Supreme Court has considered the method of allotment of marks in the oral interviews. There can be no doubt that in the aforementioned decision, the Supreme Court has deeply gone into the question of allotment of the marks to the written tests and to the viva voce tests, where the selection process is a composite process comprising both the methods. It is also true that in the aforementioned decision, it is held that in the matters where the students come fresh from the schools and colleges, allotment of more than 15% of the total marks for viva voce would be unreasonable. Learned Counsel appearing on behalf of the 1st respondent also very heavily relied on the decision as she had done it before the Tribunal also. In our considered opinion, it would not be necessary for us to go into the applicability of this decision in the present scenario because of two reasons. 7. It is rightly pointed out by the learned Government Pleader that the 1st respondent was given a clearest possible notice, when he was called for the interview in pursuance of his application. Our attention was invited to the memorandum dated 14-7-1998, by which the 1st respondent therein was informed that his name had been sponsored by the Employment Exchange, Pondicherry and on that basis, his name was proposed to be considered to the post of Welfare Inspector, carrying the scale of pay of Rs. 4000-100-6000. Our attention was invited to the memorandum dated 14-7-1998, by which the 1st respondent therein was informed that his name had been sponsored by the Employment Exchange, Pondicherry and on that basis, his name was proposed to be considered to the post of Welfare Inspector, carrying the scale of pay of Rs. 4000-100-6000. It was also pointed out therein that if the candidate was willing, he should appear for a written test to be held at Calve College Government Higher Secondary School, Mission Street, Pondicherry on 29-7-1998 at 10.00 a.m. and if successful in the written test, he would be required to appear for an interview in the Chamber of the Secretary to Government (Welfare), Chief Secretariat, Goubert Avenue, Beach Road, Pondicherry on 29-7-1998 at 3.00 p.m. The learned Government Pleader draws our attention to the foot-note of is document, which is as under :- "The written test will be of objective type of degree level in the following subjects :- 1. General English 2. General Knowledge 3. General Arithmetic and 4. Questions in subject of Social Work/Sociology/Psychology. For written test 65 marks and 35 marks is for viva voce." Thus, the learned Government Pleader rightly contends that the 1st respondent, who offered himself for the appointment, was given the clearest possible idea that for the written test 65 marks were allotted and for viva voce test 35 marks were allotted. According to the learned Government Pleader, once the 1st respondent chose to appear for the examination, got selected for being tested in the oral interview, appeared for the oral interview and was rejected, cannot turn around and challenge the whole process of selection. The learned Government Pleader heavily relies on the observations made by the Apex Court in Madan Lal v. State of J. and K. The learned Government Pleader invites our attention to paragraph 9, where the Apex Court holds as follows at page 1093; of AIR :- "Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." The Supreme Court, thereafter, proceeds to hold in paragraph 10 that such candidate, who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful, cannot be allowed to challenge the process of selection. The learned Government Pleader points out another decision in Union of India v. Chandrasekharan, wherein at page 699 in paragraph 13, the Apex Court holds as follows at Page 615-616; of Lab IC :- "It is not in dispute that all the candidates were aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report." It will be seen that in both the cases the challenge was for the disproportionately high marks allotted for the oral interview. In both the cases, the Apex Court has accepted the principle that a person, who offers himself with full knowledge of the selection process of the written test and then undergoes the interview and finds himself to be unsuccessful, cannot be allowed to challenge the selection process, much less on the ground that the marks allotted for the oral interview are unduly excessive. As against this, learned Counsel for the 1st respondent has invited our attention to a reported decision in Rajkumar v. Shaktiraj. The learned Counsel points out that in this case, the case earlier referred, viz., Madan Lal v. State of J. and K. cited supra, has been referred to. The learned Counsel points out that when a candidate had taken a chance to appear for the interview and after finding himself to be unsuccessful, challenges the selection process, and even when it was found by the Apex Court that the whole process was riddled with irregularities and illegalities, the Supreme Court did not entertain that challenge. The learned Counsel relies on the observations in paragraph 16, which are as under at Page 2193-2194., of Lab IC :- "The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J. and K., and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the Constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in this case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case." In fact, the learned Counsel very heavily relies upon this decision and suggests that even in the present case, the same kind of irregularities and illegalities had been committed. Now it cannot be disputed that the Supreme Court had not chosen to interfere on the ground that there were number of illegalities committed. Now it cannot be disputed that the Supreme Court had not chosen to interfere on the ground that there were number of illegalities committed. However, learned Counsel was not able to point out to us the kind of illegalities committed by the interviewing committee in the present case. In the case cited supra, the Supreme Court had pointed out that 1955 Rules were revived. The said Rules were breached. The Supreme Court also found fault with the application of the concerned Rules. It also found fault with the way in which the marks were distributed. No such circumstance is available in the present case. It is obvious that the observations made by the Supreme Court that the principle of estoppel by conduct of acquiescence had no application to the facts in that case. Thus, the Supreme Court, in fact, restricted those observations to the facts in that case. Such facts have not been brought to our notice or even to the notice of the Tribunal. The learned Government Pleader took us through the original application filed by the 1st respondent, where we do not find any such challenge having been made to avoid the doctrine of estoppel by conduct. We are, therefore, of the view that initially itself the original application was not maintainable as the petitioner had taken full part in the selection process, knowing it fully well as he was already noticed about the same. 8. As if this was not sufficient, the petitioner did not join the selected candidates as party respondents to the original application. In this behalf, our attention was invited by the learned Senior Counsel Mrs. Nalini Chidambaram to the original application filed by the 1st respondent before the Tribunal, more particularly to paragraph 9 therein, where it is stated as follows :- "The applicant states that so appointment orders have not been issued to any of the six selected candidates pursuant to the select list dated 29-7-98. If the impugned order selecting six other candidates is not stayed by this Hon'ble Tribunal, it would cause irreparable hardship to the applicant. If the impugned order selecting six other candidates is not stayed by this Hon'ble Tribunal, it would cause irreparable hardship to the applicant. The applicant does not have the details of the other candidates who are selected and undertakes to implead them as soon as he gets their details." The learned Senior Counsel as well as the Government Pleader point out that on the date when this application was filed, the select list was available with the petitioner and, therefore, it could not be said that the details regarding the selected candidates were not available with the petitioner. That apart, even in spite of this specific pleading in the original application, later on also, the petitioner did not choose to join the said selected candidates as parties, while assailing the whole selection process and claiming the cancellation of that selection. It cannot be gain-said that the allowing of the application would have very substantially affected the selected candidates inasmuch as they would have lost their jobs. We are told that during the pendency of the original application itself, not only the factum of selection was known to the petitioner, but, subsequently when the appointment orders came to be issued, the Government, for the reasons best known to it, thereafter developed cold-feet and did not choose to proceed to appoint the selected candidates, probably because of the interim order. In fact, the interim order of the Tribunal was clear enough to the effect that if the appointment orders were issued, then those appointments would be subject to the result of the original application. As pointed out by the learned Government Pleader, posting orders also could have been given to the selected candidates. We however will not go into that issue now, because it is academic for us to consider that issue. 9. Both the learned Counsel for the petitioners herein rely upon the decision in Prabodh Verma v. State of U.P., and more particularly the observations in paragraph 28, which are as follows at Page 1207; of Lab IC :- "The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh case, 1979 All(LJ) 178. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable defects. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties - not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties." The observations are more than telling. In the decision cited supra, there was at least a distant justification for not joining the necessary respondents as they were too large in number. But, in the present case, the original application was filed questioning the selection of barely six candidates. Yet, they were not joined as parties. This question was tried to be avoided by suggesting that the selection process was inherently riddled with irregularity and illegality and, therefore, the non-joinder of parties would not have affected the result one way or the other. Reliance was placed on the aforementioned decision in Rajkumar v. Shaktiraj. We are afraid that the observations made in that case are not applicable to the present case, as we have already pointed out, there are no grave illegality or irregularity as were found in that case. 10. The other case relied on by the learned Counsel was Bhagwanti v. Subordinate Services Selection Board. We are afraid that the observations made in that case are not applicable to the present case, as we have already pointed out, there are no grave illegality or irregularity as were found in that case. 10. The other case relied on by the learned Counsel was Bhagwanti v. Subordinate Services Selection Board. In this case also, as many as 48 candidates were selected by the Subordinate Services Selection Board, Haryana, for appointment as Lady Social Workers, while 26 out of them were offered appointments. The said selection and the appointments were challenged on the ground that the selection committee interviewed large number of candidates in a short span of time and as such the selection was a sham affair. It was also pointed out that as many as 687 candidates were interviewed on one and the same day. The Apex Court very specifically pointed out that the only party before it was the Subordinate Services Selection Board and the candidates, who were selected and who were issued appointment orders were not joined as parties. It was pointed out by the Apex Court that the High Court has set aside the selection and the appointments without hearing the persons concerned. This is what the Apex Court has held :- "It is settled proposition of law that no order to the detriment of a person can be passed without hearing him. We, therefore, allow the appeal and set aside the impugned order of the High Court on this short ground. The writ petition filed by the respondents before the High Court is thus dismissed. No costs." We are left with no other course, but to follow the same. 11. The third decision relied upon by the petitioners herein is S. Jaffar Sahib v. Secretary, A.P.P.S.C. In paragraph 4 of the said decision, the Supreme Court holds as follows :- "Then again there is an additional hurdle on the part of the appellant namely affected persons are not made parties to the proceedings. It is too well settled that without impleading a person as a party whose rights would be affected, no Court/tribunal can pass any order against him. It is too well settled that without impleading a person as a party whose rights would be affected, no Court/tribunal can pass any order against him. In the aforesaid premises we find no justification for our interference under Article 136 of the Constitution with the impugned order of the Tribunal." Therefore, it is clear that the original application was not tenable as the selected persons, who were the essential parties, were not joined as parties. 12. Learned Counsel for the 1st respondent tried to argue that the selected candidates, or as the case may be, the appointed candidates may even be proper parties, but not necessary parties, the non-joinder of whom would be fatal to the original application. We are afraid that we cannot agree with this contention because in this case it cannot be said that the selected candidates were merely "proper" parties and not "necessary" parties. 13. In the very scheme of things, allowing the original application would have meant a complete doom for the selected candidates, as the very challenge is of their selection and their subsequent resultant appointment. In our opinion, they were necessary parties, the non-joinder of whom, would be fatal to the original application. 14. Unfortunately the members of the Tribunal have not addressed themselves on these two vital issues. It is for these reasons that the writ petitions would have to be allowed and the order of the Tribunal, quashing the selection process, would have to be set aside. It is accordingly set aside and the writ petitions are allowed. In the circumstances, however, there shall be no order as to costs. Consequently the connected W.M. Ps. are closed.