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2009 DIGILAW 170 (CAL)

Nambi Rajan v. Rohit Dsouza

2009-03-02

RUDRENDRA NATH BANERJEE, SUBHRO KAMAL MUKHERJEE

body2009
Judgment : MUKHERJEE, J. (1) This is an appeal against the judgment and order dated July 14, 2008 passed by the Honble Single Judge of this Court in WP No. 223 of 2007. The Honble Single Judge, by the order impugned, allowed the application under Article 226 of the Constitution of India (hereinafter referred to as the writ petition) holding, inter alia, that the selection process for selection of three Junior Engineers (Civil) in the Port Blair Municipal Council was vitiated by illegality, that is, improper constitution of the selection committee; therefore, the appointments were bad. Liberty was granted to the Municipal Council to fill up those posts in accordance with law. (2) The Port Blair Municipal Council decided to fill up three posts of Junior Engineers (Civil) some time in 2002. An advertisement was published by the Municipal Council to fill up the said three posts of Junior Engineers (Civil). At that point of time, the process of recruitment was governed by the instructions issued by the Administration; there was no statutory recruitment rules. (3) The petitioner applied for his appointment. But, no further action was taken by the Municipal Council for filling up the said three posts of Junior Engineers. (4) However, some time in 2005, new Recruitment Rules were framed to fill up the vacant posts in the Port Blair Municipal Council. (5) The Port Blair Municipal Council, on August 24, 2006, published an advertisement to fill up the said three vacant posts of Junior Engineers (Civil) as also to fill up two. more additional vacancies, which accrued subsequently. (6) This writ petitioner moved a writ petition before this Court, which was registered as WP No. 34 of 2007 contending, inter alia, that the said three vacant posts of Junior Engineers (Civil) should be filled up-in accordance with the recruitment procedures prevailing as of 2002 and not according to the recruitment rules framed in 2005. (7) The said writ petition was disposed of by the judgment and order dated June 27, 2007 inter alia, quashing the advertisement published by the Municipal Council to the extent that the said advertisement could not be made applicable in relation to the said three Junior Engineers (Civil), It was held that those three vacancies should be filled up not in accordance with the said rules of 2005. However, it was made clear that so far as the additional two vacancies were concerned, those might be filled up in according with the rules of 2005. (8) The aforesaid judgement was accepted both by the writ petitioner namely, Rohit DSouza, as also the respondents to the writ petition, that is, the Port Blair Municipal Council and the Administration. (9) Consequently, the Port Blair Municipal Council decided to fill up the said three posts of Junior Engineers (Civil) following the procedures as were prevailing prior to publication of the rules of 2005. (10) The writ petitioner was one of the applicants for the said post. The added respondents, who are the appellants before us, also, applied for the said posts. Interview for selection was held on August, 2007. The added respondents, that is, the appellants, were selected, but the writ petitioner was not selected. (11) Being aggrieved, the writ petitioner moved the present writ petition. The writ petitioner alleged that as the writ petitioner was in the knowledge that procedure for selection was interview, he did not challenge the said procedure. The petitioner attended the interview, but found that the members of the selection committee consisting of persons, who were incompetent to conduct the selection. He, further, alleged that the members of the selection committee asked him to produce all his certificates. He produced all his certificates. After perusal of the said certificates, the members told him that interview was over and he could leave the place. The petitioner enquired from the members as to why they did not put any question to him. The Chairperson and other members informed the petitioner that there was no requirement to ask any question to him. The petitioner alleged that the Municipal Council was obliged to hold written test. He alleged that interview committee consisted of Chairperson of the Municipal Council, who was a graduate, the Secretary of the Municipal Council, who was, also, a graduate, the Executive Engineer-in-charge of the Municipal Council, who was a diploma holder in engineering and the Superintending Engineer, who was, however, a graduate engineer. He contended specifically that excepting the said Superintending Engineer, all other members of the selection committee were incompent. (12) The writ petitioner made a representation to the authorities on August 28, 2007. In the said representation, he alleged that the interview was conducted by incompetent members. He contended that excepting Mr. He contended specifically that excepting the said Superintending Engineer, all other members of the selection committee were incompent. (12) The writ petitioner made a representation to the authorities on August 28, 2007. In the said representation, he alleged that the interview was conducted by incompetent members. He contended that excepting Mr. Reddy, the Superintending Engineer (Civil), all other members of the selection committee were not qualified enough to conduct the interview for the posts of Junior Engineers (Civil). (13) An affidavit-in-opposition is filed by the Port Blair Municipal Council. The affidavit was affirmed by the Secretary of the Port Blair Municipal Council, who was a member of the selection committee. He contended that proper interview was held by putting questions to the petitioner and marks were allotted to him. However, on evaluation of the marks of all the candidates, the petitioner was not selected. (14) The Honble Single Judge allowed the writ petition. Hence this appeal by the added respondents, they were selected by the Port Blair Municipal Council. (15) Prior to 2005, admittedly there were no recruitment rules, but there were executive instructions. The Junior Engineers, according to the relevant executive instructions, were to be selected by a committee comprising of the Chairperson of the Port Blair Municipal Council, the Chief Engineer, APWD/Superintending Engineer (Electrical), the Secretary, Port Blair Municipal Council and the concerned officers of the Council to be nominated by the Chairperson of the Municipal Council. The selection committee for selection of the Junior Engineers (Civil) in this case was comprised of the Chairperson, Port Blair Municipal Council, who acted as the Chairman of the Committee also, the representative of the Chief Engineer, APWD, namely Shri Reddy, who was the Superintending Engineer (Civil), APWD, the Secretary of the Municipal Council and the Executive Engineer-in-charge, who was nominated by the Chairperson of the Municipal Council. (16) The stand of the writ petitioner was never consistent. He contended that he was aware that the procedure for selection was by interview and, therefore, he did not challenge the procedure before his participation in the selection process. In his representation to the authorities, before filing of the writ petition, he contended that excepting Shri Reddy, who was the Superintending Engineer (Civil), all other members of the selection committee were incompetent to select the Junior Engineers. In the writ petition, also, he reiterated his said stand. In his representation to the authorities, before filing of the writ petition, he contended that excepting Shri Reddy, who was the Superintending Engineer (Civil), all other members of the selection committee were incompetent to select the Junior Engineers. In the writ petition, also, he reiterated his said stand. He has taken specific ground that excepting that Superintending Engineer (Civil), namely, Shri Reddy, all other members of the selection committee were incompetent. At the time of hearing of the writ petition, he contended for the first time, that inclusion of the said Shri Reddy in the selection committee was illegal inasmuch as he was the Superintending Engineer (Civil) and not the Superintending Engineer (Electrical), APWD. In the writ petition, he, however, contended that the Municipal Council ought to haye conducted the written test followed by interview. (17) The Honble Single Judge in the order impugned before us categorically recorded that the writ petitioner contended, as his main point before His Lordship, that the selection committee was not properly constituted. (18) Mrs. Anjili Nag, learned Advocate appearing for the writ petitioner/respondent No. 1, submits that she, also, raised the question of written test, but there is no reflection in the judgment. It is well settled that the factual recitals or observations made in a judgment or order are taken to be correct unless rebutted. The burden to rebut it is on the person, who challenges it. There is nothing on record to show that such burden is discharged. The appeal Court cannot launch into an enquiry as to what transpired before the Honble Single Judge. We are, therefore, not prepared to accept that said contentions of Mrs. Anjili Nag. (19) Mrs. Nag submits that another Division Bench of this Court in MAT No. 007 of 2008 (the Port Blair Municipal Council and others v. Shri Stenly James and others) held that even under the previous recruitment process written examination ought to have been held and viva-voce could not be the sole basis for selection of the candidates. Mrs. Nag submits that, therefore, the selection held only on the basis of viva-voce was illegal. In the writ petition faintly it was suggested that the selection was bad for not holding of the written test. Mrs. Nag submits that, therefore, the selection held only on the basis of viva-voce was illegal. In the writ petition faintly it was suggested that the selection was bad for not holding of the written test. In the representation of the writ petitioner filed before filing his writ petition and in the writ petition principal contention raised was that the composition of the selection committee was bad. He contended that excepting Mr. Reddy, all other members were incompetent to select the Junior Engineers (Civil). Moreover, in the writ petitioner, he had categorically stated that as he had knowledge that procedure for selection was interview, he did not challenge the said procedure after publication of the press note. (20) We have already indicated that the stand of the writ petitioner was never consistent. The jurisdiction under Article 226 of the Constitution of India is not only extraordinary, but is equitable jurisdiction. There is no equity in favour of a party whose stand is inconsistent, inasmuch as the principles of equity aims to promote honesty and fair play. (21) Let us, now, consider as to whether the selection committee was properly constituted or not. The selection committee was to comprise of tour persons. The Chairperson of the Port Blair Municipal Council, who had to act as the Chairman of the selection committee; the Chief Engineer, APWD/ Superintending Engineer (Electrical), the Secretary of the Port Blair Municipal Council and the concerned officers of the council to be nominated by the Chairperson of the Port Blair Municipal Council. The selection committee, in this case, comprised of the Chairperson of the Municipal Council, who acted as the Chairman, the Secretary of the Municipal Council, the Executive Engineer-in-charge, of the Municipal Council, who was nominated by the Chairperson of the Municipal Council. The Chief Engineer, APWD, did not come himself. There is no post of Superintending Engineer (Electrical) in APWD. The Chief Engineer, therefore, nominated the Superintending Engineer (Civil). The nomination of the Superintending Engineer was justified. The committee was to select the Junior Engineers (Civil). The Superintending Engineer (Civil) was, therefore, justifiable nomination by the Chief Engineer to act as one of the members of the selection committee. (22) We are not unmindful of unreported decision cited by Mrs. Nag. But, we are informed that the operation of the said order has been stayed by the Supreme Court of India. The Superintending Engineer (Civil) was, therefore, justifiable nomination by the Chief Engineer to act as one of the members of the selection committee. (22) We are not unmindful of unreported decision cited by Mrs. Nag. But, we are informed that the operation of the said order has been stayed by the Supreme Court of India. Moreover, the writ petitioner specifically contended that he participated in the interview knowing fully well that the procedure for selection was interview only. The question of written test was not specifically raised at the time of hearing of the writ petition. The main contention was that the composition of the selection committee was not proper. (23) There were no statutory recruitment rules, but there was an executive instruction as to how the Junior Engineers (Civil) were to be recruited. The procedures required that either the Chief Engineer, APWD, or the Superintending Engineer (Electrical), APWD, was to act as a member of the selection committee. It is an admitted position that there is no post of Superintending Engineer (Electrical) in APWD. Therefore, the Chief Engineer nominated the Superintending Engineer (Civil) to act as a member of the selection committee. Inclusion of the Superintending Engineer (Civil) in the selection committee was justified and did not vitiate the selection process. (24) Moreover, the writ petitioner contended specifically both in the writ petition as also in the representation submitted by him before filing of the writ petition that the Superintending Engineer (Civil) was the only competent person in the selection committee. He cannot, now, be permitted to urge that the inclusion of Shri Reddy, Superintending Engineer (Civil), in the selection committee, vitiated the selection process. (25) Mrs. Nag refers to the Regulation 24(2) of the Andaman and Nicobar Islands (Municipal Council) Regulation, 1994 and submits that each and every appointment in the post of engineer and salary and other conditions attaching thereto are subject to the approval of the administrator. She submits that such approval was not obtained before issuing the appointments in favour of the added respondents. This question was never raised in the writ petition nor argued before the Honble Single Judge. New point depending upon further investigation of facts could not be raised for the first time in appeal. Question never raised before the Honble Single Judge cannot be allowed to be raised for the first time in appeal. This question was never raised in the writ petition nor argued before the Honble Single Judge. New point depending upon further investigation of facts could not be raised for the first time in appeal. Question never raised before the Honble Single Judge cannot be allowed to be raised for the first time in appeal. We cannot, therefore, permit the writ petitioner to raise this question, for the first time in this appeal, by taking the other sides by surprise. (26) We hold that the selection committee was properly constituted and the selection was properly held. (27) We, therefore, hold that the Honble Single Judge erred in law in allowing the writ petition. The order impugned is, therefore, set aside. The writ petition filed by the writ petitioner-respondent No. 1 is dismissed. The appeal is allowed. The Municipal Council is directed to issue consequential orders in favour of the added respondents who are the appellants before us, expeditiously. (28) We direct the parties, in the facts and circumstances of this case, to bear their respective costs in this appeal.