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2006 DIGILAW 787 (CAL)

G. PRASAD RAO v. SHANKAR BISWAS

2006-12-12

MANIK MOHAN SARKAR, PRATAP KUMAR RAY

body2006
PRATAP KUMAR RAY, J. ( 1 ) HEARD the learned advocates appearing for the parties. ( 2 ) LEAVE is granted to the learned advocate for the private respondent to file an application for vacating the interim order. This application is taken up for hearing as on day's list. ( 3 ) TODAY this matter has been taken up for extension of the interim order. The respondent No. 1 has filed an application praying for vacating the interim order. As a very short question of law involved, this Court is of the view that without granting any opportunity further to the parties to exchange their respective affidavits viz. the affidavit-in-reply to the application with reference to the application for vacating, the matter can be decided on the basis of the documents in the writ application as well as in the application for vacating. We are also dispensing with the filing of paper books and compliance of procedural formalities. ( 4 ) THE challenge in the writ application is the order dated 24th november, 2006 passed by the Central Administrative Tribunal, calcutta Bench (Circuit at Port Blair) in O. A. No. 99/aandn/2001, whereby and whereunder the application filed by the respondent No. 1 was allowed and thereby the final selection list with reference to the selection of a candidate for the post of driver in the organization of the respondent Nos. 3 and 4, was set aside and quashed with a rider that de-novo selection process could be initiated by allotting only 15% of total marks for oral interview. The factual matrix of the case is to this effect. The respondent No. 1 was an unsuccessful candidate for the post of driver who challenged the selection process and more particularly fixation of the 70% marks in the oral interview in comparison to the 30% marks for trade test. Admittedly, the respondent No. 1 appeared in the selection process, took part in the trade test and the oral interview and thereafter challenged the selection process when he could not succeed to reach the No. 1 position in the panel as prepared by the selection committee. Admittedly, the respondent No. 1 appeared in the selection process, took part in the trade test and the oral interview and thereafter challenged the selection process when he could not succeed to reach the No. 1 position in the panel as prepared by the selection committee. It is also an admitted position that in the application filed by the respondent No. l before the learned Tribunal there was no allegation of mala fide action and/or arbitrary action on the part of the members of the selection committee so far as favouring a particular candidate and also there was no allegation of biased attitude against any member of the selection committee. The members of the selection committee were not made parties in the proceeding at all. Hence, the only point as taken before the learned tribunal in the application by the respondent No. l about justifiability of fixation of higher marks in the interview with reference to selection to the post of driver. The affected parties viz. the persons who are above the respondent No. 1 in the selection list were admittedly not made parties in the proceeding. But, subsequently as per the direction of the learned Tribunal a copy of the application was served to the writ petitioner through the Director of Industries i. e the concerned employer, wherein the writ petitioner was appointed in terms of the selection list. This application, filed before the learned Tribunal below, was opposed by the employer concerned by filing affidavit. ( 5 ) AFTER the Judgment was delivered by the learned Tribunal below allowing the application of the respondent No. 1 and quashing the entire selection, the present writ petitioner on taking leave of the court filed the writ application and got an ex parte interim order by moving the same before the Division Bench (Bhaskar Bhattacharya and K. K. Prasad, JJ.) on 6th December, 2006. This writ petition has been filed by the first empanelled candidate and appointee in the post concerned in terms of the selection as made. ( 6 ) ON a bare scanning of the Judgment under challenge in the writ, it appears that the learned Tribunal below on relying upon the case of ajay Hasia v. Khalid Mujib Shervardi and Ors. This writ petition has been filed by the first empanelled candidate and appointee in the post concerned in terms of the selection as made. ( 6 ) ON a bare scanning of the Judgment under challenge in the writ, it appears that the learned Tribunal below on relying upon the case of ajay Hasia v. Khalid Mujib Shervardi and Ors. , reported in 1981 (1) SCC 722 and the Judgment passed in the case of Ashok Kumar Yadav v. State of Haryana, reported in (1985)4 SCC 417 held that fixation of 70% marks out of total marks in the oral interview was contrary to the settled legal position as decided by the Apex Court by holding that fixation of higher marks in oral interview may lead a scope of favouritism to a particular candidate concerned as per choice of the employer in public employment. ( 7 ) LEARNED advocate for the writ petitioner relied upon an unreported Judgment of the Division Bench (Coram: Bhaskar bhattacharya and Pratap Kumar Ray, JJ.) in which one of us was in the bench passed in WPCT No. 30 of 2001 under cause title J. Suresh chandran and Anr. v. The Lt Governor and Ors. which was decided on 15th october, 2001 at the Circuit Bench at Port Blair to contend that the respondent No. 1 did not make out any case of mala fide and there was no whisper of biased attitude against any member of the selection committee and the respondent No. l was estopped to move the application being unsuccessful in the selection process. Learned advocate for the writ petitioner further relied upon the case of Vijay syal and Anr. v. State of Punjab and Ors. , reported in (2003)9 SCC and the judgment passed in the case of Abid Asghar v. State of Bihar and Ors. , reported in (1994) 1 SCC 151 in support of the application to this effect that fixation of the higher marks in the interview ipso facto and par se cannot be considered as illegal and the Court of Law should not interfere with the selection process until and unless there is a case of mala fide action on the part of the members of the Selection committee and biased attitude on their part to select a particular person as per their choice is made out. On the basic principle of law about estoppel and waiver to agitate any matter as already reached a finality, it is a settled law that a party after taking a chance of selection cannot turn round to challenge the selection process upon being unsuccessful. Reliance may be placed to the Judgment passed in the case of Omprakash Shukla v. Akhtieshwar Shukla, reported in AIR 1986 sc 1043 which has been followed in the case of Madam Lal v. State of jandk, reported in 1995 (3) SCC 486 and in Chandra Prakash Tiwari case reported in 2002 (6) SCC 127 and the case Union of India v. N. Chandra sekheran, reported in 1998 (3) SCC 694 . ( 8 ) THERE is only a rider whereby this estoppel and waiver principle has been made non-applicable in those cases where there is a clear averment of mala fide action on the part of the members of the selection committee and their biased attitude to select a particular person justifying intervention by Court under the anvil of Article 14 of the Constitution of India to quash such selection process but that too with a rider that the allegation of mala fide action must be in a concrete foundation and with a positive and clear averment thereof and the parties against whom such mala fide action has been urged must be made parties in the proceeding. Reliance may be placed to the Judgment passed in the case Rajendra Roy v. Union of India and Anr. , reported in 1993 (1) SCC 148 on positive pleadings of malajlde and the case of I. K. Mishra v. Union of India and Ors. , reported in 1997 (6) SCC 228 on party addition and proper pleading. ( 9 ) HAVING regard to the settled principle of law this Court is to scan the impugned Judgment of the writ application as to whether the respondent No. 1 made out a case to come out from the embargo under estoppel and waiver. , reported in 1997 (6) SCC 228 on party addition and proper pleading. ( 9 ) HAVING regard to the settled principle of law this Court is to scan the impugned Judgment of the writ application as to whether the respondent No. 1 made out a case to come out from the embargo under estoppel and waiver. It appears from the application that there was no whisper even in the application itself that the members of the selection committee were biased and acted in mala fide manner to favour the writ petitioner by allotting higher marks to secure his position at the top of the panel as a selected candidate, and further there is no averment that to make the writ petitioner's position as a first candidate of the panel to cover up the less marks as obtained in the trade test by the writ petitioner, higher marks were allotted to him in the oral interview. Furthermore, in the application before the learned Tribunal below, none of the members of the selection committee was made party and there was no malajlde and biased action urged against them. ( 10 ) HAVING regard to such state of affairs, this Court is of the view that there is a little scope to come out from the embargo of estoppel and waiver principle by the applicant who filed the application before the learned Tribunal below after being unsuccessful. ( 11 ) LEARNED Tribunal below failed to address the issue in that angle and did not consider that aspect of the matter. Furthermore, the finding of the learned Tribunal below is that allotment of the higher marks in the interview per se arbitrary which has no legal basis or foundation. Issue of allotment of marks in the viva voice test and the written test cropped up long back in the case of Lila Dhar v. State of rqjasthan, reported in (1981)4 SCC 159 first, where with reference to the case of appointment of a Munsif the question evolved was as to whether the higher marks in the oral interview could be fixed by the employer concerned for selecting a candidate thereof which was addressed in the positive way by holding inter alia that when it requires an intellectual assessment it could be done. The following principles in Lila Dhar (supra) emerged: (a) A written examination assesses a candidate's knowledge and intellectual ability whereas an interview test is valuable to assess a candidate's overall intellectual and personal qualities. (b) No written test can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much depending on the constitution of the interview board. (c) The written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. (d) The weight to be attached to the written examination and the interview, however, would depend on the service for which the recruitment is made e. g. in the case of admission to a college where the candidate's personality is yet to develop, greater weight might be given to performance in written" examination whereas in case of services to which recruitment has to be made from persons of matured personality, interview test may be the more effective way of assessing the suitability. The Court observed that there could not be any rule of thumb regarding the precise weight to be given and it must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, and various other factors. " ( 12 ) IT is the employer's choice to fix up the higher marks in the oral interview than the marks in the written test. Furthermore, in the case of Ashok Kumar Yadav (supra) as relied upon by the learned tribunal the Apex Court considering other Judgments passed earlier dealt with the issue by holding that there could not be any straight jacket formula to hold that under any circumstances the marks of the oral interview could not exceed to the marks in the written examination. Even the cases decided by the Apex Court that only on the basis of oral interview by keeping a minimum eligibility marks in the written examination, selection of candidate was legal and valid. Even the cases decided by the Apex Court that only on the basis of oral interview by keeping a minimum eligibility marks in the written examination, selection of candidate was legal and valid. Reliance may be placed upon the Judgment passed in the case of All india State Bank Officers' Federation v. Union of India, reported in 1997 (9)SCC 151 where 60% marks in oral interview as an eligibility criterion was not considered by Court as arbitrary. ( 13 ) HAVING regard to settled legal position of law, this Court is of the view that fixation of higher marks in the oral Interview per se cannot be considered as arbitrary and illegal action to face the wrath of writ jurisdiction of the High Court of Calcutta in exercise of power under Article 226 of the Constitution of India as fixation of the higher marks in the oral interview simpliciter without any allegation and/ or averments of biased and/or favouritism attitude of members of selection committee in favour of a particular candidate, does not make such fixation of marks as illegal, The views of Apex Court in the case d. V. Bakshtiv. Union of India at Para 7, reported in (1993)3 SCC 663 is profitable to quote, which reads as follows: "7. . . . . . . . . . In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well-founded. But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well-founded. " ( 14 ) THIS higher marks fixation in the oral interview surely got a justification as it appears from the affidavit filed by the employer concerned, as it is their choice to select a person by considering not only the securing of eligibility marks in the trade test I. e the test of driving, signaling, etc. but also by assessing behavioural aspect of the candidate who could be appointed as a driver by holding oral interview to that effect. Hence, fixation of such marks per se cannot be said as illegal. Furthermore, it appears from the documents as annexed in the writ application that out of six candidates who appeared in the oral interview the highest average marks secured in the oral interview was 44,67 and the minimum was 30. 67. It appears that the other candidates got the marks in between these two level of marks and the respondent No. 1 who filed the application before the learned Tribunal below got 33 marks in average in the oral interview. On considering the range of the marks as allotted and having note of the deciding factors thereof, it appears before this Court that even the allotment of the marks per se was not arbitrary. Furthermore, from the application filed by the respondent No. 1 it appears that the respondent No. 1 himself admitted that a minimum pass marks of 15 was allotted for trade test as an eligibility condition to appear for interview. Hence, the contention of the respondent No. 1 that he secured 21 marks in the trade test and thereby became a best suitable candidate cannot, be accepted as justified applying the concept of securing of eligibility marks to appear in the interview. Marks in trade test relates to knowledge of driving a motor vehicle whereas marks in oral interview covers other fields namely identification of I. Q, behavioural and presentation attitude as well as other factors. ( 15 ) CONSIDERING all the aspects of the matter, accordingly we are of the view that the impugned Judgment under appeal in the writ application passed by the learned Tribunal is illegal and not legally sustainable, and accordingly, it is set aside and quashed. ( 15 ) CONSIDERING all the aspects of the matter, accordingly we are of the view that the impugned Judgment under appeal in the writ application passed by the learned Tribunal is illegal and not legally sustainable, and accordingly, it is set aside and quashed. It is needless to say that the writ petitioner who is now working in the post in question will be entitled to get all the service benefits in terms of the service condition and rule. Stay of operation of the Judgment and order, as prayed for, by respondent No. 1 is rejected.