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2002 DIGILAW 43 (GAU)

Dipu Das v. Motiur Rahman

2002-01-18

A.K.PATNAIK, H.K.KUMAR SINGH

body2002
A.K. PATNAIK, J. — This is an appeal filed by the three appellants against the judgment and order dated 9.8.1999 of the learned Single Judge in Civil Rule No. 1445/1993. 2. The facts relevant for the purpose of disposal of the present appeal briefly are that the respondent No. 1 herein filed a writ petition under Article 226 of the Constitution bearing Civil Rule No. 14457 1993 before the learned Single Judge. The case as made out by the writ petitioner in the said writ petition was that the District & Sessions Judge, Bongaigaon, issued an advertisement in the year 1992 inviting applications for, inter alia, the posts of process server in his establishment. Respondent No. 1 and the three appellants amongst others applied for the said posts and they were called for a written test and interview on 25.4.1993. In the written test, the candidates were asked to write only one essay. A total of 25 marks was allotted for the said written test out of which respondent No. 1 and the three appellants secured 10 marks each. On 25.4,1993 itself an interview was also held. The Interview Board was comprised of the Chief Judicial Magistrate, Bongaigaon, the Sub-Divisional Judicial Magistrate, Abhayapuri, the Munsiff/Magistrate, Bongaigaon, the District and Sessions Judge, Bongaigaon and the Judicial Magistrate, 1st Class, Bongaigaon. A total of 50 marks was allotted for the interview out of which respondent No. 1 secured only 15 marks whereas appellants 1, 2 and 3 secured 24.6, 21.4 and 17 marks respectively. A select list was published on 25.4.1993 in which appellants-1,2 and 3 and respondent No. 1 were placed at serial Nos. 1,2,3 and 4 respectively and thereafter appointment orders were issued in favour of appellants-1, 2 and 3 for the posts of process server. Respondent No. 1 challenged the said selection and appointment in the writ petition. Respondent No. 1 alleged in the writ petition that although respondent No. 1 answered all the 17 questions put to him at the interview, he was awarded only 15 marks in a discriminatory manner only with the view to deprive him from getting appointment. Respondent No. 1 challenged the said selection and appointment in the writ petition. Respondent No. 1 alleged in the writ petition that although respondent No. 1 answered all the 17 questions put to him at the interview, he was awarded only 15 marks in a discriminatory manner only with the view to deprive him from getting appointment. The further case of respondent No. 1 in the writ petition was that respondent No. 1 was a graduate and the essay written by him could not be equal in standard with that of the essay written by the appellants who were only Higher Secondary passed candidates, and hence it was not probable that respondent No. 1 and the three appellants would get same marks in the essay. Respondent No. 1 further contended in the writ petition that allotment of 50 marks for the interview and 25 marks for the written test was arbitrary and unjust, and the allotment was made only to ensure that the favourite candidates could be included in the select list in higher position whereas those who were not favourites could be pushed down in the select list by allotting less marks in the interview. By the judgment and order in Civil Rule No. 1445/93, the learned Single Judge held that in a recent decision, the Apex Court has held that for the interview not more than 15% marks can be fixed whereas the marks for the interview allotted in the present case were double the marks allotted for the written test and this should not have been done. By the said judgment and order, the learned Single Judge allowed the writ petition, set aside and quashed the selection of the three appellants and directed that the matter be sent back to the Appointing Authority to conduct a fresh selection and to allot 15% of the marks allotted for the written test for interview. Aggrieved by the said judgment and order, the three appellants have filed this appeal. 3. On 8.9.1999, the Division Bench while issuing notice in the appeal to the respondents passed an interim order allowing the appellants to continue in service, and on 19.6.2000 the Division Bench admitted the appeal and directed that until further orders the appellants would continue in service. Pursuant to the notice issued in the writ appeal, respondent No. 1 has not appeared. Pursuant to the notice issued in the writ appeal, respondent No. 1 has not appeared. Respondents 2 and 3 appeared through the Government Advocate, Assam. Respondent No. 4 has appeared through Mr B. Chakraborty, advocate, and has filed an affidavit-in-opposition. The case of respondent No. 4 is that he has not appeared in the interview for selection to the three posts of process server and he has been appointed by the District & Sessions Judge, Bongaigaon temporarily as a process server against an entirely different vacant post in the Court of the Munsiff, Bongaigaon, and the said post was not one of the advertised posts for which selection was held. Thus, the question to be decided in the present appeal is whether the selection and appointment of the appellants to the three posts of process server which were advertised were valid in law. 4. Mr S.P. Roy, learned counsel for the appellants, submitted that the law is well-settled that in the absence of any statutory rules for allotting marks for written test and interview, the Selection Committee has the discretion to allot marks for the written test and the interview in such proportion as it deems fit and proper, and the High Court should not interfere with the decision of the Selection Committee regarding such allotment of marks in exercise of its power of judicial review under Article 226 of the Constitution. In support of this submission, Mr Roy cited the decision of a Division Bench of this Court in S. Sailo, Mizoram-Vs-State of Mizoram & others, 1996 (III) GLT429, in which it has been held that it is entirely for the authority to decide as to what kind of examination would be held for recruiting persons and merely because there is some possibility of misuse by holding viva voce test, the Court cannot come to the conclusion that the action is arbitrary or without jurisdiction. He also relied on the decision of a Division Bench of this Court in Y.S. Singh & Ors.-Vs-G. SatyabatiDevi&Ors., 1998(3) GLT167, in which it has been held that the Court while exercising its power under Article 226 of the Constitution cannot sit in appeal over the decision of the Selection Committee and substitute its own decision for the decision of those who are made responsible for selection of the best available candidate. Mr Roy also cited the decision of a learned Single Judge of this Court in Y. Chaoba Singh-Vs-State of Manipur, 1998(4) GLT312: 1999 2 GLR 31, for the proposition that it is not the function of the Court to hear appeals over the decisions of the Selection Committee and it is under the wisdom and domain of the Selection Committee to decide the matter as it has the expertise on the subject and the Court has no such expertise. 5. Mr Roy next submitted that in any case respondent No. 1 having participated knowing fully well that 25 marks were allotted for the written test and 50 marks were allotted for the interview cannot turn around and challenge the allotment of such marks for the written test and the interview in a writ petition when he found that he was not appointed to the post for which selection was held. In this context, Mr Roy pointed out that the written test and the interview were held on 25.4.1993 and the results were declared on the very same day, i.e., 25.4.1993 and appointment orders of the appellants were issued on 24.5.1993, and only after the appointment orders were issued in favour of appellants, respondent No. 1 filed the writ petition before this Court on 5.6.1993. Mr Roy cited the decision of a Division Bench in this Court in S. Baruah & Others-Vs-State of Assam & Ors. 1996 (III) GLT323, in which the Court rejected the contention of some of the candidates who had taken the written test conducted by the Assam Public Service Commission for selection to the posts of Assistant Engineer (Civil) uiuJjA) the Public Works Department that^Iong with the call letters issued by the Assam Public Service Commission a very sketchy syllabus was enclosed which did not contain the details of the syllabus but only the broad headings for the written test on the ground that the candidates having appeared in the examination without protest were not entitled to approach the Court after having failed in the same. He also relied on another decision of a Division Bench of this Court in Assam Animal Husbandry Association- Vs-State of Assam, 1999(2) GLT 121 in support of this contention. He also relied on another decision of a Division Bench of this Court in Assam Animal Husbandry Association- Vs-State of Assam, 1999(2) GLT 121 in support of this contention. According to Mr Roy, the learned Single Judge should not have set aside the selection for appointment of the appellants only on the ground that the marks allotted for the interview were on the higher side. Mr Roy submitted that the appellants though impleaded as respondents in the writ petition were not represented before the learned Single Judge at the time of hearing of the writ petition and this aspect of the matter should have also been taken into consideration by the learned Single Judge. He submitted that the appellants had already worked for 6 years and their selection and appointment should not have been lightly interfered with by the learned Single Judge unless some gross irregularities were found in the selection process. He further pointed out that the appellant No. 3 in the meanwhile has been appointed on promotion as a Lower Division Assistant. He argued that if, at this stage, the selection and appointments of the appellants are held to be bad, grave prejudice would be suffered by the appellants. 6. On a perusal of the judgment of the learned Single Judge, we find that the only reason given by the learned Single Judge for setting aside the selection and appointment of the appellants to the posts of process server is that while the total marks allotted for the written test were 25, the total marks allotted for the interview were 50, and as per the recent decision of the Supreme Court, marks allotted for the interview should not exceed 15% of the marks allotted for the written test. It is in the case ofAjay Hasia-Vs-Khalid Mujib, AIR 1981 SC 487 that the Supreme Court held that allocation of 33V3% of total marks in admission to Educational Institution for oral interview was plainly arbitrary and unreasonable and observed that under the existing circumstances allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable. But in Lila Dhar-Vs-State ofRajasthan, AIR 1981 SC 1777 , in a petition under Article 32 of the Constitution the selection for the posts of Munsiff was challenged on the ground that it was arbitrary as 25% marks were allocated for viva voce under the rules, but the Supreme Court dismissed the writ petition. In the said decision, the Supreme Court also held that its observations in the case of Ajay Hasia (supra) were made primarily in connection with the problem of admission to colleges and did not lay down any wide general rule so as to be applied to also recruitment to public services. In the language of the Supreme Court: “Nor do we think that the Court intended any wide construction of their observation. As already observed by us the weight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source-material available for recruitment, the composition of the Interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in case of proven or obvious oblique motive. There is none in the present case.” Thus, in the said case of Lila Dhar-Vs-State of Rajasthan, (supra), the Supreme Court has taken the view that the weight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source-material available for recruitment, the composition of the Interview Board and several like factors. In Siya Ram- Vs- Union of India, AIR 1998 SC1470, the Supreme Court referring to its observations in the case of Lila Dhar (supra) reiterated: “This Court held that the selection for the post of Munsiff was valid and could not be struck down. It said that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public service. It said that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public service. It said that in the case of service to which recruitment had necessarily to be made from persons of mature personality, interview test may be the only way and subject to basic and essential academic and professional requirements being satisfied and that subjecting such persons to written test might yield unfruitful and negative results. There cannot be any rule of thumb regarding the precise weight to be given and that it must vary from service to service according to the requirement of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. The Court said that it was a matter for determination by experts and also a matter for research and that it was not for the Court to pronounce upon it unless exaggerated weight had been given with proven or obvious oblique motives.” It will be clear from the aforesaid judgment of the Supreme Court in Siya Ram-Vs-Union of India (supra), that there cannot be any rule of thumb regarding the precise weight to be given to the interview test and it would vary from service to service according to the requirement of service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. In the said decision of the Supreme Court in Siya Ram's case, the Supreme Court further observed that it is not for the Court to decide as to what weight should be attached to the interview and the Court will only interfere if exaggerated weight has been given with proven or obvious oblique motives. 7. In the present case, it appears that the Interview Board comprised of several Judicial Officers including the District & Sessions Judge, Bongaigaon, and the Chief Judicial Magistrate, Bongaigaon, and it is difficult to attribute oblique motives or bias to such an Interview Board. 7. In the present case, it appears that the Interview Board comprised of several Judicial Officers including the District & Sessions Judge, Bongaigaon, and the Chief Judicial Magistrate, Bongaigaon, and it is difficult to attribute oblique motives or bias to such an Interview Board. Further, respondent No. 1 and the three appellants appeared to have secured 10 marks in the written test as has been stated by respondent No. 1 in the writ petition. The learned Single Judge has also recorded a finding that respondent No. 1 and the appellants have secured 10 marks each in the written test. Thus, it was not as if respondent No. 1 had secured higher marks than the appellants in the written test and a total of 50 marks was allotted for the interview only to ensure that the aggregate marks that the appellants secure in the written test and the interview exceed the aggregate marks secured by respondent No. 1. It is therefore difficult to hold that 50 marks were allotted for the interview with the oblique motive of selecting the three appellants and not selecting respondent No. 1 for the three posts of process server and that the selection was arbitrary or violative of Articles 14 and 16 of the Constitution. In view of our aforesaid conclusion it is not necessary for us to consider the other contentions of Mr Roy, learned counsel for the appellants. 8. We accordingly allow this appeal, set aside the impugned judgment dated 9.8.1999 of the learned Single Judge and dismiss the writ petition, but we make no order as to costs.