Bombay High Court
Kalabai Pramod Raut vs Selection Committee, Anganwadi Sewika ... on 25 April, 2007
Equivalent citations: 2008(1)BOMCR925, 2007(4)MHLJ349
Author: A.H. Joshi
Bench: A.H. Joshi, R.C. Chavan
JUDGMENT A.H. Joshi, J.
1. Parties were put to notice for final disposal. After notice by this Court, contesting respondents have filed their respective affidavits. In view of this, Rule. Rule is made returnable forthwith and is called for final disposal by consent.
2. Heard.
3. This is a simple case which proceeds on certain admitted facts, namely:
(a) The selection process is based on allotment of marks on the basis of pre-decided norms, such as educational qualification, experience, place of residence, caste or category, etc. These marks are 80 in number, and are to be objectively allotted.
(b) Twenty marks have been reserved for viva voce, where in the personal interview, where marks would be allotted by each member or the Selection Panel, and their average would be the quantum.
(c) Consolidated sheet of allotment of marks shows over-writing suggesting that in the educational qualification column, initially, respondent No. 4 was allotted 15 marks, and 15 marks for her falling in the SC/ST category, the total whereof was 30.
(d) The document on record (page 21) reveals that respondent No. 4's marks under the Head "Educational Qualification" were corrected to 20 by overwriting, and total "30" was corrected to 35 in the same manner.
(e) Thus, in the present case, respondent No. 4 was shown to have been allotted 35 marks out of 80 marks.
(f) Insofar as the petitioner is concerned, she was allotted 10 marks towards educational qualification, 15 towards her class or category, 15 towards experience being more than one year and 10 marks towards professional training, i.e., Certificate Course for kindergarten. The total marks, the petitioner was allotted, are 50 out of 80 marks.
(g) It is seen that in the viva voce, the petitioner was granted 1 mark each by the Chairperson as well as by all other members (four) and the average thereof was naturally one out of twenty. Petitioner, thus, scored 51 marks in total.
(h) The respondent No. 4, who was shown to have scored 35 marks, was allotted full 20 out of 20 marks available for viva voce. The average thereof naturally became 20 and adding 20 marks to 35 allotted to her on the basis of objective analysis of her record, she was shown to have scored 15 more marks and she was selected and appointed.
4. This Court is fully alive and conscious towards limitations of judicial review in the matters of scrutiny of viva voce performance, result thereof and assessment by the persons sitting to adjudge the capacity and ability of candidates.
5. On the facts of the case, we are faced with the situation where, on one hand, the objective assessment is of vast distinction and in the viva voce, the candidate, who has been selected, has been given highest/full marks available under the head of viva voce while two candidates who had highest, i.e. 50 out of 80 marks, namely the petitioner and one Dhanmala Bankar both were awarded only one out of 20 marks for viva voce.
6. The reply to the petition is filed for and on behalf of respondent No. 1-Member-Secretary of Selection Committee, by Shri Chhabilal Ramchandra Ganvir, who is the Child Development Programme Officer, who had in his official capacity participated for conducting the viva voce. He has allotted marks which have been recorded in column No. 8. As we see from the contents of petition, in paragraph No. 5, the petitioner has averred the nature of questions she was asked and she also asserts that she has replied those correctly. While answering para 5, the respondent has averred which should better be referred by quoting ad-verbatim as below:
5. As to Para No. 5 :-- The averments made in this para are ground disputed question of facts in which the writ jurisdiction cannot be involved the petitioner has been granted marks on the basis of his performance and this is a subjective procedure. The marks given during the personal interview are given by the persons who have interviewed the candidates. And it is their prerogative to allot marks as they deem fit. The points raised are the only disputed questions of facts which cannot be gone into the petitioner has not made the individual members of the Selection Committee respondent/party in their personal capacity and hence the petition may be dismissed for want of non-joinder of necessary parties. The respondent No. 5 has scored the highest marks after the total marks were counted i.e., marks given on the basis of documents plus marks scored during the interview. The respondent has scored 55 marks were as the petitioner has scored 51 marks. The petitioner has not stood in the merit list and hence not selected. There is another candidates namely Dhanmala Bankar who has scored the same marks as the petitioner and has also not been selected.
(quoted from pages 49 and 50 of the paper-book of the Writ Petition)
7. We see from what the respondent No. 1 has answered is that be has failed to dispute even what the petitioner has stated about questions put to her and her replies being correct. This aspect, therefore, goes untraversed. The respondent No. 1, on the other hand, has agitated the point as to absence of legal right to seek judicial review. He has also objected to the maintainability of the petition on the ground of a disputed question of fact and the absoluteness of powers of Selection Committee in the process of making judgment as to the assessing the performance of candidate in the process of oral interview.
8. It is further seen that the respondent No. 1 defends the selection by the Committee, contending that 'process of selection and marking is subjective, and is the prerogative of the members and based thereon the marking has been done.'
9. Respondent No. 4 naturally had her own limitations while answering the contents of para 5 of the petition, however, she as well has filed affidavit opposing the petition. It was open to her to have pleaded in what way she was able to impress the Selection Committee by extraordinary performance shown by her, thereby qualifying for full 20 out of 20 marks which is neither seen nor even suggested. Some such averments became necessary, particularly when specific averments about questions in viva voce were made by the petitioner in para No. 5 of the petition.
10. On perusal of the marking done in the process of viva voce, we find that marking done to various other candidates bears some difference between assessment by different members inter se as well as inter se candidates. We, however, note a peculiar fact, namely that similar to the petitioner where only one mark each has been given by all the members of Selection Committee, same modus operandi has been adopted while assessing the performance of candidature of Smt. Dhanmala Digamber Bankar, who too had 50 marks on overall merit and has been awarded only one mark by each amongst the members of Selection Committee. Had either the petitioner or said Smt. Dhanmala Bankar received any fraction mark more than what was given to them in viva voce, most certain consequence was that the respondent No. 4 was bound to fail.
11. The conduct, which is exhibited by the respondent No. 1 in the present case, constrains us to believe that the Executive, instead of marching ahead towards fairness by mercerizing the procedure further, has shown inclination towards capriciousness, thereby constraining the Court to interfere in the matters in relation to which exclusive prerogative of Executives is judicially recognized.
12. In the case of Ashok Kumar Yadav v. State of Haryana and Ors. , while scrutinizing the ratio of viva voce to the Written Examination, the Apex Court observed as follows:
Minimum marks required for eligibility of viva voce test is 180 marks and as against these minimum 180 marks, the highest marks obtained in the written examinations in the category of ex-service officers was 270, the spread of marks in the written examination, thus, being only 90, which works out to a ratio of 22.2 per cent. But when we turn to the marks obtained in the viva voce test, we find that in the case of ex-service officers, the lowest marks obtained were 20, while the highest marks secured were 171, the spread of marks in viva voce test was as wide as 151 in a total of 200 marks, which worked out to an inordinately high percentage of 76 per cent. The spread of marks in the viva voce test being enormously large compared to the spread of marks in written examination, the viva voce test tended to become a determining factor in the selection process.
The Court further opined that the allocation of higher percentage of marks to viva voce test opens the door wide for arbitrariness and in order to diminish if not to eliminate the risk of arbitrariness, the percentage needs to be reduced.
13. Later in the case of Mohinder Sain Garg v. State of Punjab (1991) 1 SCC 642 where the ratio of viva voce marks to written examination marks was 25.75 per cent, the Apex Court observed that such percentage of marks was arbitrary and excessive. Further observing that:
There could be no gainsaying that viva voce test cannot be totally dispensed with, but taking note of situation and conditions prevailing in our country, it would not be reasonable to have percentage of viva voce marks more than 15 per cent of the total marks in selection of candidates.
14. We find that the element of subjectivity involved in the allotment of the marks in viva voce was noted in Kothari Commission's report, where the ratio between viva voce and objective test was recommended so that marks reserved for viva voce should not exceed 12.5 per cent. We find that in the course of time, whenever question relating to ratio of viva voce and objective test came before the Courts, the Courts devised a formula of the said ratio to be between 15 and 25 per cent for viva voce and 85 to 75 per cent for objective test varying on nature of post, subject-matter, such as assessment of past service records etc., written test, educational qualification, experience, field record etc., to illustrate.
15. We now feel that present is a case where Kothari Commission's recommendations of viva voce to be limited to the extent of 12.5 per cent could alone have been applied, which would have thereby minimized the dominant capacity of assessment in viva voce plus of overshadowing the process of selection and capacity to nullify the assessment based on objective merit. We are satisfied that in present case, as is seen, the arbitrary assessment done in viva voce which is a product of act of favour has actually resulted in nullifying objective merit.
16. The allotment of full/excessive marks to respondent No. 4, and allotment of one out of 20 marks and consequential rejection of candidature of the petitioner and Smt. Dhanmala Bankar is of such a vast margin that it speaks for itself, and is, therefore, shocking, and it calls for interference at once. We, therefore, hold that this is one such rare amongst the rarest cases where on what is apparent from record without sitting into judicial review as to whether the assessment of the candidates was done by the Selection Committee correctly, we find that the manner in which the assessment and allotment of marks has been done is grave and shocking. We are satisfied that for reaching this conclusion, one does not have to sit in an appeal or a judicial review of the process of selection.
The approach of the respondent Nos. 1 and 3 to the case is totally undesirable.
17. It is necessary to take note of one more point urged by learned Advocate Mrs. Munshi, contending that the individual members of the Selection Panel are not made a party.
18. We find that it is not a case where allegations of personal nature are made against a particular individual. In absence of allegations of personal nature, such members of Selection Committee being arrayed is not necessary. It is a case where all the members of the Selection Committee have been blamed for granting marks to the respondent No. 4 in concurrence and congruence to bring her to the level of passing one and the same modus operandi of giving only one mark to meritorious candidates to suppress and negative their chances. This has been alleged is legal malice and it can very well be defended by the respondent No. 1 through Ex-officio Secretary, which has not been done. Moreover, while this Court is quashing the selection of respondent No. 4, she has been heard. The respondent No. 1 through its Member-Secretary is also heard. This Court has not passed strictures against any particular individual. In their official capacity, members of Selection Committee are duly served through the respondent No. 1. Therefore, we do not find that there is infirmity in the petition on this count.
19. We see no remorse emerging from reply for what the Selection Committee has behaved. On the other hand, there is an effort to justify its whole unjustifiable conduct on all possible arguments.
20. In view that there are two candidates having same mark, it would not be possible to issue a writ of Mandamus directing that the petitioner alone should be appointed. We, therefore, leave it to the respondents - Selection Committee to consider the petitioner and other candidates having same merit ranking as per rules and prefer one amongst the two on the basis of existing rules, for appointment. It shall be needless to mention that while doing so, the petitioner having approached this Court should not be a matter of vengeance or her demerit.
21. We, therefore, make the Rule absolute and quash and set aside the selection of respondent No. 4.
We direct that the respondent No. 1 shall bear own cost and pay to the petitioner costs which are quantified in a sum of Rs. 5,000/- (rupees five thousand only) and which shall be paid without her being required to apply for execution of order within thirty days from today by sending it to the petitioner by Money-order.