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2014 DIGILAW 396 (CAL)

Asit Krishna Saha v. Union of India

2014-04-29

SAMBUDDHA CHAKRABARTI

body2014
JUDGMENT Sambuddha Chakrabarti, J. 1. The short question involved in the present writ petition is whether the authorities taking an interview are justified to wait beyond the scheduled hours fixed for the same for any particular candidate to appear. 2. Pursuant to a notice published in a Bengali daily inviting application from intending persons for appointment of LPG distributor at Ghatal in the district of Paschim Medinipur the petitioner filed an application. 3. By a letter dated June 20, 2008 the petitioner was called for an interview on July 11, 2008. It was specifically mentioned in the said letter that any request for change of date and time for the interview would not be entertained. 4. Since no panel could be prepared after the said interview the authorities decided to hold a second interview. By a letter dated August 8, 2008 the petitioner was intimated that a fresh interview would be held on August 23, 2008 at 11 hrs. The said letter also contained a stipulation that no request for change in date and time for re-interview would be entertained. 5. The case of the petitioner is that on the scheduled date he had appeared along with three other candidates. But the respondent no. 5 who was also a candidate, did not appear at the date and time fixed for the fresh interview. On September 15, 2008 when the result was published it appeared that the said respondent no. 5 had been selected as the first empanelled candidate with the petitioner occupying the second position. A letter of protest by the petitioner was followed by an application under the Right to Information Act. The respondents authorities in reply to the query under the Right to Information Act annexed the attendance sheet of the interview which had taken place on August 23, 2008. The attendance sheet revealed that the four candidates had duly appeared at the time and place fixed for the same. But Sri Prodyut Kumar Sardar, the respondent no. 5, had appeared at 8:45 p.m. The petitioner alleged that since it was specifically mentioned in the call letter for holding the interview and the re-interview that request for change of date and time would not be entertained, the decision to hold the interview of the respondent no. 5 at 8:45 hrs. was bad. 5, had appeared at 8:45 p.m. The petitioner alleged that since it was specifically mentioned in the call letter for holding the interview and the re-interview that request for change of date and time would not be entertained, the decision to hold the interview of the respondent no. 5 at 8:45 hrs. was bad. This interview and the eventual selection as the first empanelled candidate have been challenged by the writ petitioner with a prayer for a writ in the nature of Mandamus commanding the respondents to show cause why the respondents should not be directed to give a Letter of Intent to the petitioner who is second in the panel in respect of the LPG distributorship at Ghatal and for quashing the impugned panel and for other reliefs. 6. The respondents nos. 2 to 4 have contested this application by filing an affidavit-in-opposition. It has been very specifically denied that the respondent no. 5 was not present before the screening committee for re-interview or that the selection committee had violated any guideline prescribed in the advertisement. A more specific case of the respondents was that only five candidates were called for the re-interview on August 23, 2008 and up to 11:30 hrs. only four candidates turned up. The screening committee while verifying the records of dispatched interview call letters found that confirmation of letter dispatched to the respondent no. 5 was not available in the records; but his phone number was available in the application form. In the interest of justice and fair play the interview committee contacted the respondent no. 5 over telephone when it was discovered that the interview call letter had not been received by him. The screening committee advised the respondent no. 5 to attend the interview if it was possible for him and the interview of the respondent no. 5 had taken place at 8:45 p.m. on August 23, 2008 as the respondent no. 5 had to travel a long distance from his place to the venue of interview at Durgapur. 7. The respondent no. 5 in his turn has used an affidavit-in-opposition the contents of which are more or less in the same line to the affidavit used by the respondent nos. 2 to 4. 5 had to travel a long distance from his place to the venue of interview at Durgapur. 7. The respondent no. 5 in his turn has used an affidavit-in-opposition the contents of which are more or less in the same line to the affidavit used by the respondent nos. 2 to 4. According to him the notice dated August 8, 2008 calling candidates for a fresh interview was not received by him personally by putting his signature on either acknowledgement card or on any piece of paper. It was brought to his notice over telephone by the official respondents to attend the interview to be held on August 23, 2008 which he had received at around 1 p.m. on that date. He had to travel about 200 kilometers which took almost 7 hours for him to reach the place of interview and accordingly the selection committee had taken his interview at 8:45 hrs. According to him if he had received the interview letter at the proper time he could have appeared before the selection committee at the time fixed in the interview. But since this notice was not received by him personally by putting his signature either on the acknowledgement card or on any piece of paper he had reached the place of interview only after receiving a phone call from the concerned official. 8. In connection with this writ petition several supplementary affidavits and oppositions thereto have been filed. In the supplementary affidavit filed by the petitioner and affirmed on February 8, 2010 the petitioner has annexed the attendance sheet of the candidates who appeared at the re-interview on August 23, 2008 before the selection committee. 9. The respondents nos. 2 to 4 by their supplementary affidavit-in-opposition affirmed on June 24, 2010 had brought on record the report of the screening committee dated August 23, 2008. The stand of the respondents in the said supplementary affidavit was more or less same to their stand in the affidavit-in-opposition. It was also stated that the respondent no. 5 after reaching Durgapur requested the authorities to give him an opportunity to appear at the interview and, therefore, he was interviewed at 8:45 p.m. 10. In the supplementary affidavit-in-reply the petitioner had raised the question whether the senior Area Officer or any other officer whom the respondent no. It was also stated that the respondent no. 5 after reaching Durgapur requested the authorities to give him an opportunity to appear at the interview and, therefore, he was interviewed at 8:45 p.m. 10. In the supplementary affidavit-in-reply the petitioner had raised the question whether the senior Area Officer or any other officer whom the respondent no. 5 had requested to allow him to appear at the interview had at all the power to reschedule the interview for a particular candidate. The petitioner made applications under the Right to Information Act both to the Indian Oil Corporation as well as to the Post Master of the concerned post office regarding the delivery of the interview letter of the respondent no. 5. The information received from the concerned Post Master revealed that the notice for interview of the respondent no. 5 was posted from Durgapur Post Office and the same was delivered to the respondent no. 5 on August 14, 2008. As such the allegation that he had not received the re-interview letter was not sustainable. A copy of the postal delivery report has been annexed to the said supplementary affidavit-in-reply which clearly showed that the registered letter was delivered to the respondent no. 5 on August 14, 2008 after receiving his signature. It has also been stated that he had signed the acknowledgement card as well. 11. From this the petitioner has sought to argue that the factual basis of the case sought to be made out by the concerned respondents has been conclusively negatived by the reply given by the postal authorities. The petitioner has also very specifically relied on the reply received by him from the Indian Oil Corporation to the query made under the Right to Information Act. In reply to the query made by the petitioner as to who had received the letter dated August 23, 2008 from the respondent no. 5 requesting the authorities to allow him to appear at the interview the Indian Oil Corporation Limited had very specifically informed that no such letter was received by the Senior Area Manager, Durgapur. According to the petitioner this entirely demolishes the case of the respondents about the circumstances and reasons for allowing the respondent no. 5 to appear at the re-interview. 12. The stand taken by the respondents nos. 2 to 4 appears to be a little surprising. The reason for contacting the respondent no. According to the petitioner this entirely demolishes the case of the respondents about the circumstances and reasons for allowing the respondent no. 5 to appear at the re-interview. 12. The stand taken by the respondents nos. 2 to 4 appears to be a little surprising. The reason for contacting the respondent no. 5 was the alleged non-availability of service return of the notice for re-interview. According to them the respondent no. 5 expressed his willingness to appear at the interview and requested for some time as he was required to travel up to Durgapur from his place of residence at Maheshtala. According to the respondents the officials who had come from Odisha thought it prudent to wait for the respondent no. 5 rather than to stand it over to some other day to conclude the interview process debarring the respondent no. 5 which could have frustrated the entire interview process. The respondents nos. 2 to 4 have relied on the relevant policy circular as casting an obligation upon the screening committee to conduct re-interview of all candidates in all parameters of selection who fall within a certain category. 13. Obviously the policy circular must be read in the proper context. Undoubtedly it casts obligation upon the selection committee to interview all the candidates in all its parameters. But it must be construed to be in respect of all the candidates who were present on the date of interview before the selection committee. It can never mean that a candidate who is not present or who has not come must be individually contacted to ascertain his willingness to appear at the interview and the selection committee will wait for an indefinite length of time for his arrival. To accept their further stand that there was no upper time limit for the selection committee and as such the interview of the respondent no. 5 at 8:45 p.m. cannot be said to be arbitrary will amount to putting too high a premium on the authority and discretion to be exercised by the respondents. 14. The respondents have relied on an unreported judgment and order of this court dated April, 18, 2011 in Indian Oil Corporation Limited and Others –Vs.- Indranil Das and Another (FMA 1141 of 2010). There the writ petitioner did not receive any call letter before the interview and he filed a writ petition. 14. The respondents have relied on an unreported judgment and order of this court dated April, 18, 2011 in Indian Oil Corporation Limited and Others –Vs.- Indranil Das and Another (FMA 1141 of 2010). There the writ petitioner did not receive any call letter before the interview and he filed a writ petition. Upon a direction given by this court directing the respondents to consider the representation of the petitioner the authorities were of the view that the call letter was properly despatched and as such the Indian Oil Corporation had no fault on their part. The division bench was of the view that mere selection did not create any right in favour of any petitioner since the writ petitioner of that case had specifically alleged that he had not received any call letter the burden shifted to the appellants in the said appeal to prove that the letter was served upon the writ petitioner and the Division Bench further concluded that the appellants had failed to discharge the burden to prove that the call letter had been delivered. 15. This judgment obviously has no application to the facts of the present case. There a candidate after not receiving the call letter had approached this court for a remedy. It is not a case that the authorities themselves had contacted and eventually searched out a non-appearing candidate. The stand of the Indian Oil Corporation taken in that judgment, however, runs counter to the stand taken by them in the present case. After being initially directed by this court the respondents had taken a stand that since the call letter was despatched to the writ petitioner in that case they could not be held responsible in any manner and they had no other legal obligation in the matter. 16. There would not have had been anything to say against the Indian Oil Corporation if their exercises in the present case as well had ended with that. In fact, that ought to have been the stand taken by the respondents authorities in fitness of things. Merely because service return was not available with them was no ground for them to contact the respondent no. 5 and then to wait for an inordinately long period allowing the respondent no. 5 to appear. This must be reckoned to be a very unusual procedure adopted by them. 17. The respondents nos. Merely because service return was not available with them was no ground for them to contact the respondent no. 5 and then to wait for an inordinately long period allowing the respondent no. 5 to appear. This must be reckoned to be a very unusual procedure adopted by them. 17. The respondents nos. 2 to 4 next relied on the case of Dalpat Abasaheb Solanki, etc. etc. –Vs.- Dr. B. S. Mahajan etc. etc., reported in AIR 1990 SC 434 for a proposition that it is not the function of the court to hear the appellants over the decision of the selection committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proof of mala fide affecting the selection. 18. This, however, is not a case where the relative merit of the respondent no. 5 is the subject of challenge. This is also not a case where the petitioner questioned the expertise of the selection committee. This is a case where the manner in which the respondent no. 5 was interviewed and was empanelled as the first candidate are under challenge. The proposition of law relied on by the respondents is far too well-settled but has no application to the facts of the present case. 19. Again the case of Km. Nilima Mishra –Vs.- Harinder Kaur Paintal & Ors., reported in AIR 1990 SC 1402 , has been relied on by the respondents nos. 2 to 4 on the distinctions between quasi judicial and administrative functions. An administrative function is called quasi judicial when there is an obligation to adopt a judicial approach and to comply with the basic requirements of justice. Where there is no such obligation the decision is called purely administrative and there is no third category. 20. In fitness of things the judgment should be more favourably applied in favour of the basic obligation to adopt the judicial approach and to comply with the basic requirements of justice which is alleged to have been violated in the present case. 20. In fitness of things the judgment should be more favourably applied in favour of the basic obligation to adopt the judicial approach and to comply with the basic requirements of justice which is alleged to have been violated in the present case. That apart, even if one argues that the order impugned in the writ petition was purely an administrative order, even that does not really give any right on the officials of the respondent no. 2 Corporation to hold an interview of the respondent no. 5 and to give a complete go-by to the schedule of holding the interview as fixed by them. 21. It has already been found that the stand taken by the respondent no. 5 that he did not receive the notice has not been factually correct. The annexure to the supplementary affidavit amply bears it out. Even if the service return from the respondent no. 5 was not available with the authorities it was rather unusual for the members of the selection committee to contact a candidate personally and then to find out if he was willing to participate in the selection process. A non-appearing applicant is not expected to be contacted by the selection committee to ascertain whether he would appear at the interview. 22. I also find sufficient justification in the submission of the petitioner that the condition stipulated in the call letter that the time, place etc. of the interview shall not be changed has been violated by shifting the time of holding the interview of the respondent no. 5 and by waiting for him till 8:45 p.m. the authorities decided to give a go-by to their own stipulation inasmuch as at the instance of the respondent no. 5 the time for interview was definitely altered. 23. The petitioner relied on the case of Indu Gupta –Vs.- Director, Sports Punjab, Chandigarh and Anr., reported in AIR 1999 P&H 319 where a Full Bench of the High Court has held that the provisions contained in the information brochure have the force of law and have to be strictly complied with. 24. Therefore, interviewing the respondent no. 5 at an almost ungodly hour and then selecting him as the first empanelled candidate smacks of mala fide. 24. Therefore, interviewing the respondent no. 5 at an almost ungodly hour and then selecting him as the first empanelled candidate smacks of mala fide. It is also not understood why the members of the selection committee waited till 8:45 p.m. I find sufficient justification in the contention of the petitioner that the respondent no. 5 ought not to have been shown extra favour by the members of the selection committee who have deliberately allowed him to undertake the distant journey to Durgapur which had admittedly taken him seven hours. This must be reckoned to be a very unusual course of conduct on the part of the respondents. In such view of it I find sufficient merit in the writ petition and I allow the same. I direct the authorities to cancel the Letter of Intent in favour of the respondent no. 5. The respondents are directed to issue the same in favour of the second empanelled candidate on the basis of the re-interview which had taken place on August 23 2008. Such exercise has to be completed within a period of four weeks from the date of the communication of the order and to take consequential steps in accordance therewith. 25. There shall, however, be no order as to costs.