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2010 DIGILAW 1799 (BOM)

Ku. Hastrekha Mohanlal Borkar v. Zilla Parishad, Gondia

2010-12-21

P.D.KODE, S.A.BOBDE

body2010
JUDGMENT S.A. BOBDE, J.:- Rule returnable forthwith. Heard finally with consent of learned Counsel for the parties. 2. The petitioner has sought a direction to the respondent Authorities to issue an appointment order in her favour as a candidate from open category (woman) in pursuance of her selection for the post of Extension Officer (Agriculture). 3. The dispute arises in respect of appointment to the post of Extension Officer (Agriculture) with the respondent Zilla Parishad, Gondia. All over the State, such appointments have been made in pursuance of selection to the posts made by the Maharashtra Knowledge Corporation Ltd., i.e. respondent no.4. After selection by the respondent no.4, the names of the selected were forwarded to the respondent Zilla Parishad, who then forwarded the same to the District Selection Board headed by the Collector of the District for interviews. Thereafter appointment orders were to be issued by the Zilla Parishad on the recommendation of the District Selection Board. In the present case, selection was made by the respondent no.4 in pursuance of written examination. A letter was issued to the petitioner stating that she was selected at the first position for the post of Extension Officer (Agriculture), on 15/7/2008. The petitioner, however, did not hear anything about selection thereafter till date. 4. It seems, thereafter the respondent no.4 discovered a defect in the procedure of selection. As a result, the respondent no.4 decided to cancel the entire selection and do a fresh selection, which was also manually re-checked. The results of the second selection were submitted by the respondent no.4 to the Zilla Pari shad. This time, i.e. in the second round, the respondent no.4 also forwarded the name of respondent no.5 whose name had earlier been omitted because she had not produced non-creamy layer certificate. The Zilla Parishad did manual verification of this list and in the fresh list, the Zilla Parishad placed the respondent no.5 on the top and forwarded the select list to the District Selection Board for interview. The Zilla Parishad, however, only forwarded the name of respondent no.5 since according to it, the other candidates on the select list, such as petitioner, had already been interviewed. The Zilla Parishad, however, only forwarded the name of respondent no.5 since according to it, the other candidates on the select list, such as petitioner, had already been interviewed. Now, this lone candidate, i.e. respondent no.5 was interviewed by the District Selection Board, which awarded 9.21 marks to her and the respondent no.5 was found to have obtained the highest marks amongst the candidates, which surprisingly included candidates, who had undergone process of selection and interview about one year and five months earlier. Thus, respondent no.5 was declared selected. The final merit list was as follows: Sr. Seat No. Candidate Marks in Marks in Total Marks No Name Interview Written exam 1 12940010 Tirale Kiran Kisanlal 09.21 112.50 121.71 2 12940002 Borkar Hastarekha Mohanlal 11.85 102.50 114.35 3 12940001 Balbuddhe Dipalee Vinayak 07.42 100.00 107.42 4 12940003 Khandale Sadhana Shamrao 07.00 97.50 104.50 5 12940009 Tembhurnikar Shilpa Sewakdas 06.28 97.50 103.78 5. From the above list, it is an admitted position that the candidates at serial nos.2 to 5 were selected and interviewed sometime in July, 2008. Amongst them, the petitioner, who is at serial no.2, had been found to be the highest and entitled for selection and was also given a letter that she was selected, as noticed earlier. The learned Counsel for the petitioner submitted that the entire selection procedure is vitiated by arbitrariness in that though the petitioner was selected having been found to be more meritorious and also issued a letter to that effect, the name of respondent no.5, which did not appear in the entire selection process at any stage was arbitrarily brought in by the Zilla Parishad and forwarded to the District Selection Board for interview. Further that the respondent no.5 was the sole candidate, who was introduced in the selection process and interview after about one year and five months of the conclusion of the selection process earlier. 6. The learned Counsel for the respondents, however, sought to justify selection of respondent no.5 after a period of one year and five months on the ground that respondent no.5 was wrongly left out of the selection process earlier and her name was noticed after the earlier selection was rectified by the respondent no.4 Maharashtra Knowledge Corporation Ltd. and since she was the only candidate found to have been ignored, was interviewed alone and independently. Moreover, according to the learned Counsel for the respondents, this issue is concluded by the judgment of the Division Bench at Aurangabad in Writ Petition No.6828/2008 in which cancellation of the earlier selection process undertaken by the Maharashtra Knowledge Corporation Ltd. was upheld. 7. At the outset, it may be noticed that selection process appears to have virtually concluded by selection of the petitioner and the communication to the petitioner that she was selected. Thereafter while appearing to rectify and conclude the selection process after a period of one year and five months, a single candidate, i.e. respondent no.5 seems to have been brought into picture and interviewed singly. As a result of which, she was found to have obtained the highest marks and declared eligible for selection over the petitioner and the other candidates selected earlier. We see no reason why the interview ought to have been held only for the benefit of a single candidate and that too, after a period of one year and five months after finalisation of the select list. The earlier list of candidates submitted by the respondent no.4 Maharashtra Knowledge Corporation Ltd. may have been found to be defective and it may be that one of the candidates was found to have been wrongly excluded. That, however, did not justify re-opening of the selection and holding of interview for only one candidate. One of the elements, which support the results of interviews in general is the fact that all the candidates are evaluated by the same Selection Committee or Committees at the same time. It is a reasonable assumption to be made that when this is done, the candidates have been assessed by the same yardstick. Thus, calling a single candidate long after selections are done and select list is announced and interviewing her and placing her above the selected candidates, appears to us to be grossly unfair and arbitrary and a denial of equality clause contained in Articles 14 and 16 of the Constitution of India. The procedure adopted has a strong flavour of unfairness and even discrimination since candidates like the petitioner, who were selected earlier, are entitled to think that had they been re-considered for interview along with respondent no.5, they would have had an opportunity to better the performance and be selected on merits. 8. The procedure adopted has a strong flavour of unfairness and even discrimination since candidates like the petitioner, who were selected earlier, are entitled to think that had they been re-considered for interview along with respondent no.5, they would have had an opportunity to better the performance and be selected on merits. 8. Shri Kapgate, learned Counsel for respondent nos.1 and 3, and Shri. Sirpurkar, learned Counsel for respondent no.5, submitted that the issue is covered by the judgment of the Division Bench at Aurangabad in Writ Petition No.6828/2008. We are constrained to observe that it is not so. There is no doubt that one aspect of the matter, namely, cancellation of earlier selection has been upheld by the Division Bench, which decided the matter at Aurangabad. The Division Bench also noticed that subsequently some eligible candidates, who had not been called for oral interviews, were called for oral interviews and an additional list of those candidates came to be drawn. But, we do not find from the said judgment that any point, such as that arising in the present case was raised before the Division Bench, namely, that only one candidate was called for interview after a period of one year and five months and declared successful over and above those declared successful and put on the select list in the earlier round. We are, therefore, no inclined to shut out the challenge raised by the petitioner on the ground that there is an earlier judgment on similar selection. The earlier decision cannot be considered to be a precedent for the issues raised in the present case. Recently, in Government of Karnataka and others Vs. Gowramma and others ( AIR 2008 SC 863 : [2008 ALL SCR 553]), the Supreme Court observed in para (9) as follows: "Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts. direct and inferential. An inferential finding of facts is the inference, which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa V s. Sudhansu Sekhar Misra and Ors. ( AIR 1968 SC 647 ) and Union of India and Ors. Vs. Dhanwanti Devi and Ors. ( 1996(6) SCC 44 )). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn Vs. Leatherm (1901) AC 495 (H.L.) Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides." We, therefore, reject the contention of the learned Counsel for the respondents that this Court ought not to look into the grievance of the petitioner since the matter has already been decided by the Division Bench at Aurangabad. 9. 9. Shri. Sirpurkar, learned Counsel for the respondent no.5, submitted that if what happened actually at the second interview though held after one year and five months is seen, it would appear that the respondent no.5 got 9.21 marks in interview whereas the petitioner had got 11.85 marks. According to the learned Counsel, the respondent no.5 was found more melitorious on the basis of marks obtained in the written examination, i.e. 112.50, which are more than the marks obtained by the petitioner in the same examination, i.e. 102.50. In other words, respondent no.5's merit is actually decided on the basis of the written examination, which was already held and results of which remained unaltered. Therefore, according to the learned Counsel, holding of the interview even after long time makes no difference. Though contention appears to be reasonable, it overlooks the fact that others including petitioner were not interviewed along with the respondent no.5 and had they been so interviewed, they would have had an opportunity of competing and even obtaining more marks than the respondent no.5. The important thing is that there is an element of unfairness in holding an interview of a single candidate long after selections are concluded and declaring her successful. 10. It was also urged on behalf of the learned Counsel for the respondents that the petitioner ought not to be considered as entitled to challenge the selection process in which she had participated. We see no merit. This principle would not apply to the present case since the principle is based on acquiescence and estoppel. It could hardly be said that candidates in the select list, such as petitioner, who were selected earlier, had acquiesced in the interview of a candidate, who was nowhere in the competition at the earlier stage, being interviewed for the first time behind their back and admittedly without notice to them. It is well known that the said principle does not operate where a candidate participates in the selection process after lodging of protest. In the present case, in the absence of knowledge of the procedure to be adopted, it can hardly be said that the petitioner failed to lodge a protest and yet acquiesced in the process. 11. We hold that the respondent no.5's selection is vitiated. In the present case, in the absence of knowledge of the procedure to be adopted, it can hardly be said that the petitioner failed to lodge a protest and yet acquiesced in the process. 11. We hold that the respondent no.5's selection is vitiated. However, it is not possible to declare the petitioner as entitled for appointment straightway in view of the settled position of law that a candidate on the select list is not entitled as of a right to be appointed. We, therefore, set aside the selection and direct that the respondent Authorities should interview all the candidates, who are eligible to participate in such interview, on the basis of marks already obtained by them in the written examination, which is not in dispute. 12. The rule is made absolute in the above terms. No order as to costs. Ordered accordingly.