Jammu & Kashmir High Court
Mohd. Fayaz Qazi And Ors. vs State Of J And K And Ors. on 16 April, 2004
Equivalent citations: 2004(3)JKJ349
JUDGMENT S.N. Jha, C.J.
1. These four letters patent appeals arise from the common judgment of a learned Single Judge of this Court rendered on two writ petitions, SWP no. 491/1998 and SWP no. 727/1998. By the impugned judgment the writ petitions of the appellants (except the appellant of LPA (SW) no. 513/1998 which is the contra appeal) were dismissed.
2. The dispute relates to selection for the posts of Agriculture Assistants/Agriculture Extension Officers Research Assistants in the Agriculture production and Rural Development Department of the Government of Jammu and Kashmir. By advertisement no. 5 dated 25-01-1996, the Jammu & Kashmir Public Service Commission invited applications from the eligible candidates for appointment on the above said posts. Written test was held and those who secured the qualifying marks were called for interview. The appellants were also called for interview but not selected. Their case is that they possessed better qualification and they had also done well at the written test but they were not selected as private respondents got higher marks at the interview on account of very high allocation of marks for the interview vis-vis the written test. Secondly, the recruitment rules contemplates giving preference to those who possessed M. Sc. (Agriculture) qualification but ignoring the preference clause, candidates possessing B. Sc.(Agriculture) qualification were selected. Apart from these two common grounds, the appellants also challenged individual selection of some of the private respondents. Their plea to this extent was accepted by the learned Single Judge and selection of two of them was quashed. One of them, Gul Syed, is the appellant in LPA(SW) no. 513/1998.
3. The learned Single Judge rejected the contention that selection was vitiated on account of excess allocation of marks for the interview. The learned Judge noticed that the selection had been made on the basis of inter se allocation of marks as per Rule 51 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules 1980 ( in short, 'the Business Rules'), validity of which was upheld by a Division bench of this Court in the case of Abdul Wahid Zargar and Ors. v. State of Jammu and Kashmir and Ors. (SWP No. 227/1993 decided on 22:02.1994), and the plea that the marks allocated for the interview was excessive vis-a-vis the records was therefore not tenable. The learned Judge observed that having participated in the selection without any protest the non-selectees cannot complain of any defect or error in the selection procedure. The Learned Single Judge also rejected the other contention that the selection was contrary to the recruitment rules as due preference had not been given to candidates possessing qualification of M. Sc: (Agriculture). The learned Judge held that the minimum qualification prescribed under the recruitment rules being B. Sc. (Agriculture), the candidate could be given some weight age for his higher qualification, but he could not claim any preference, as such, in the matter of selection over those who possessed the requisite qualification.
4. Mr. M. K. Bhardwaj appearing for the appellants, except in LPA(SW) No. 513/1998, reiterated the case of the appellants. He submitted, firstly, that the candidates possessing M. Sc. (Agriculture) qualification were entitled to precedence over those possessing B. Sc. (Agriculture) qualification, and secondly, that the selection was vitiated on account of allocation of very high marks for the interview.
5. We will first consider the question as to whether the candidates possessing M.Sc (Agriculture) were entitled to any preference and if so, to what extent and so in what manner. To appreciate the point reference may be made to the relevant recruitment rule. Recruitment on the posts of Agriculture Assistants/Agriculture Extension Officers/Research Assistants, amongst others, is governed by the Jammu and Kashmir (Gazetted) Service Recruitment Rules 1988 framed under SRO 179 dated 2.6.1988 in exercise of powers under proviso to section 124 of the Constitution of Jammu and Kashmir. Rule 5 of the said Rules provides that no person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he possesses the qualifications as laid down in schedule II and fulfills other requirements of recruitment as provided in the rules and orders for the time being in force. Under Sub-rule (2) appointment can be made by direct recruitment (including appointment by transfer) or by promotion or partly by direct recruitment and partly by promotion in the ratio and in the manner mentioned against each post in the Schedule. For the posts in question which figure at Entry VII of the Schedule the minimum qualification has been mentioned in column 5 as:
"B.Sc. Agriculture from a (i) 50% by direct recruitment preferably M. Sc.
recognised Instituted/ Agriculture.
University. (ii) 50% by promotion from
VEWs possessing B.Sc.
Agriculture Degree having minimum 4 years
experience in that class."
6. The dispute as to whether the qualification of M. Sc. (Agriculture) entitles the candidates to precedence or preference hinges on the interpretation the term "preferably" in the aforesaid rule. Mr. Bhardwaj submitted that though B.Sc. (Agriculture) has been prescribed as the minimum qualification, the term 'preferably' indicates that those possessing the higher qualification of M. Sc (Agriculture) are to be preferred. Thus where postgraduates are available they are entitled to be selected first, the graduates can be considered only against left over vacancies, if any. Reliance was placed on Government of A.P. v. P. Dilip Kumar and Ors., 1993(2) SCC 310 in which, interpreting the preference clause, the post-graduates were held to be a separate class. Counsel pointed out that all the appellants are M. Sc. (Agriculture). He stated that the qualification of M. Sc. (Agriculture) was added in 1988 apparently to ensure greater efficiency in service. Also, it was stated, M. Sc. (Agriculture) qualification is mandatory for higher post to which the graduates cannot be promoted unless sent on deputation on state's expense. The court therefore should interpret the term 'preferably' in the larger context, and not give a narrow interpretation as to mean giving some preference where other things are the same.
7. Mr. D. C. Raina appearing for the Public Service Commission submitted that precedence to post-graduates in the matter of selection for the posts would be against the rule which prescribes B.Sc. (Agriculture) as the minimum qualification, and therefore consideration of the cases of the graduates cannot be kept in abeyance until all the post-graduates are selected. This will amount to virtually obliterating the rule which the Commission cannot do. Counsel urged that 'preferably' merely entitles the candidate to some weightage which was allowed to the candidates by awarding additional marks for the M. Sc. (Agriculture) qualification as per rule 51 of the Business Rules of the Commission (supra). In support of the submission reliance was placed on Secy, (Health) Deptt. of Health and Family Welfare, v. Dr. Anita Puri, 1996 (6) SCC 282.
8. In Government of A. P v. P. Dilip Kumar (supra), the dispute related to the appointment for the post of Deputy Executive engineer. The minimum educational qualification prescribed for direct recruitment was B. E. Degree (Civil or Mechanical) of a University of India etc. Note 1 appended to the rule however laid down:
"Post-Graduate qualification of an Indian or of Foreign University shall be treated as an additional qualification and preference shall be given to such candidates in the matter of direct recruitment, promotion and recruitment by transfer to the post of Deputy Executive Engineers."
9. It would thus appear that the rule provided for post-graduate qualification as an "additional qualification" and giving preference to such candidates in the matter of direct recruitment, promotion and recruitment by transfer. The rule position being different, the decision rendered on interpretation thereof cannot be applied in the present case.
10. That apart, the Note also provided the manner in which a post-graduate was to be given preference in the matter of promotion to the post of Deputy Executive Engineer. The 9th vacancy in the 9 vacancies roster intended for appointment as Deputy Executive Engineer was earmarked for post-graduate Assistant Executive Engineer. Further, by a memo the Government had issued instructions clarifying that the rule was not conditional or limited, and hence for any particular year, the list of eligible candidates with post-graduate qualification were to be first considered in the order of their seniority and only after considering such list the cases of ordinary graduates were to be considered and selection made on the basis of merit and ability. In these premises, the Supreme Court held that the post-graduates could be treated as a separate class.
11. Further, the Supreme Court noticed that the decision of the Administrative Tribunal (giving rise to the appeal in the Supreme Court) on the interpretation of the rule was in conflict with an earlier decision of a learned Single Judge of the High Court. Whereas the learned Single Judge accepted the interpretation that in implementing the rule of preference the Public Service Commission should first exhaust candidates having post-graduate qualification provided they had secured the minimum qualifying marks, and if they are not available in sufficient number, then and then only, graduates should be selected on merits from among those who had secured the minimum qualifying marks, the Administrative Tribunal accepted the rival view of non-preference candidates that preference rule can come into play where two candidates secure equal marks in which case the candidate possessing post-graduate qualification can be preferred. The Supreme Court observed that the view taken by the learned Single Judge earlier in point of time being a plausible view, should have been followed by the tribunal. The Supreme Court further observed that even if any two views were possible, the Tribunal ought not to have unsettled the legal position settled earlier by the High Court with which the Supreme Court had refused to interfere in a special leave petition.
12. It would thus appear that not only the rule position was different but there also was an earlier decision of the High Court on the point, with which the Supreme Court had declined to interfere, that the Court held that the Tribunal should not have taken a different view which could unsettle the settled legal position, though that could be a "possible" view.
13. In the instant case, post-graduate qualification is not treated as an 'additional qualification' as in the case of P. Daleep Kumar (supra). In the context of the rule we are inclined to take the view that the term 'preferably' merely commands the selecting authority to give preference to the candidate possessing M. Sc. (Agriculture) qualification if he stands at par with the candidate possessing B.Sc.(Agriculture) qualification i.e has secured equal marks at the selection test. Considering the post-graduates first before the graduates are considered against the left over vacancies, if any, would amount to treating the post-graduates as a class unto themselves. The result may be that all the vacancies are eaten up by the post-graduates and if it be so the result would be dilution of recruitment rule to the extent of subverting it. The Commission obviously could not do that. Under the recruitment rules B. Sc. (Agriculture) qualification being the minimum prescribed qualification the graduates are entitled to have their cases considered on merit. No doubt, in the process of consideration if a post-graduate is found to possess the same merit, that is, to have secured the same marks, he may be preferred to his counterpart graduate candidate.
14. In Secretary, (Health) Department of Health and Family Welfare v. Dr. Anita Puri (supra) the facts were somewhat similar to those of the present case. The Punjab Public Service Commission invited applications for the post of Dental Officers. The minimum qualification for the post was Bachelor of Dental Surgery (BDS). The advertisement however mentioned that preference would be given for higher dental qualification. Respondent- Dr. Anita Puri, claimed that she had MDS qualification and she was entitled to be selected on the basis of higher qualification. The Supreme Court rejected her claim observing:
"Admittedly, in the advertisement which was published for application from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B. D. S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M. D. S. is a higher qualification than the minimum qualification required for the post and Respondent 1 was having degree. The question then arises is whether a person holding a M. D. S qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforeasaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed.
15. It is relevant to mention here that in the aforesaid case the Public Service Commission had fixed 100 marks for the purpose of selection as under: -
"1. Academic achievement As per 20 marks.
essential qualification.
2. Higher qualification 2 and hallf marks
3. Gold medal 2 and half marks.
4. Sports 10 marks
5. . Experience 5 marks 1 mark for each year subject to maximum 5.
6. (i) Professional knowledge and 20 marks.
aptitude for the job 20 marks (ii) Viva Voce 20 marks (iii) General knowledge Total 100 marks"
In the instant case too, the selection was made more or less on the basis of similar allocation of marks in terms of Rule 51 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules 1980 (except that the rule provides for higher allocation of marks for viva-voce to which aspect we shall advert soon hereinafter), and it may be useful to notice the allocation as Under:
"The assessment at an interview shall be based on the following principles:
A. Performance of the candidate in ...100 marks,
the Viva Voce test.
B. Academic Merit-
(i) percentage of marks obtained ...25 marks.
in the basic (i.e. minimum
qualification prescribed for the
post.
(ii) Higher qualification than The
basic (minimum) Prescribed for
the post such as Diploma or
Degree in the Concerned
specialty/sub-Specialty/subject
/Discipline
(a) Diploma - 2 Marks)
(b) Degree - 5 Marks)
(subject to maximum of 5 marks)
C. Experience acquired by the
Candidate in the concerned
Speciality/sub-speciality/Subject/
discipline -
(i) Exceeding 1 year but Not 2 - 2 Marks
years
(ii) For excess - for every full year 2 years 1
mark subject to a total of 5 marks
including those under(i).
D. Sports/Games:
Distinction in sports/Games (i.e. - 3 Marks
representing
A University. State or Region in
any sports/Games.
E. Distinction in NCC Activities (i.e. - 2 Marks,
having hold the rank of Junior
Under Officer or having pass the
top Grade certificate
Examination of NCC)
Total A to E 140 marks."
16. On a reading of the two rules it would appear that both provide for marks for the higher qualification. Whereas in the case of Dr. Anita Puri, for higher qualification the candidate was entitled to two and half marks, in terms of Rule 51 in the present case, additional marks are allowed @ two marks for diploma and five marks for degree (subject to maximum of five marks) for higher qualification than the basic/minimum prescribed qualification.
17. In the above premises, it appears to us that the case of Dr. Anita Puri is nearer to the facts of the present case and not the case of P. Dilip Kumar (supra) which was rendered on interpretation of a different rule position. The contention put forward on behalf of the appellants that the selection was not in accordance with the recruitment rules inasmuch as post-graduates were not given due preferences, in the sense of precedence, thus does not have any substance and the same is accordingly rejected.
18. Coming to the second aspect of the case as to whether the selection was vitiated on account of higher allocation of marks for the interview vis-a-vis the record, it is admitted position that selection was made on the basis of evaluation of merit in terms of Rule 51 of the Business Rules of the Commission. The said rule has been framed by the Governor of Jammu and Kashmir Under Section 133 of the Constitution of Jammu and Kashmir. The rules contained therein are general in nature governing all selections made by the Public Service Commission. At first instance it does look that allocation of 100 marks out of 140 marks for the interview test which works out to 71% of the total marks is excessive. It hardly needs to be emphasized that higher the allocation of marks for the interview, the greater are the chances of manipulation and arbitrary selection. Courts have held that the interview marks should be limited to reasonable proportion so as to eliminate chances of-manipulation. However, this principle cannot be applied where selection is made only on the basis of interview. In the celebrated case of Ashok Kumar Yadav v. State of Haryana, 1985 (4) SCC 417, reiterating the views expressed earlier in another celebrated case of Lila Dhar v. State of Rajesthan, 1981(4) SCC 159, the Supreme Court observed;
"The competitive examination may be based exclusively on written examination or it may be exclusively on merit or it may be mixture of both. It is entirely for the Government to decide what kind of competitive examinations would be appropriate in a given case. It is not for the court to lay clown whether interview test should be held at all or how many marks should be allowed for the interview test. Of course, the marks must be minimal so as to avoid charge of arbitrariness, but not necessarily always. There may be posts and appointments where the only proper method of selection may be by viva voce test."
19. The Court further observed:
"If both written examination and viva voce tests are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test against the written examination. It must be 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, the body to which the task holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter for determination by experts. The Court does not possess a necessary equipment and it would not be right for the Court to pronounce it, unless to use of words of Chinnappa Reddy, J in Lila Dhar case, exaggerated weight has been given with proven or obvious oblique motives."
20. After quoting the above observations, the Supreme Court in Anzar Ahmad v. State of Bihar, 1994 (1) SCO 150, stated the law as follows:
"These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis-vis marks for written examination can arise when written examination as well as viva voce test are both accepted as essential features of proper selection and there also no hard and fast rule regarding the precise weight to be given to the viva voce test as against written examination, can be laid down and the said weight must vary from service to service according to the requirement of the service. The question of weight to be attached to viva voce would not arise where the selection is to be made on the basis of interview only"
21. It is admitted position that the selection in the instant case was to be made on the basis of interview alone. The recruitment rule does not provide for any written test. In the advertisement it was made clear that the written test, if any, depending upon the number of applicants, would be for the purpose of short listing. It may be useful in this connection to refer to the relevant part of the advertisement notice as under: -
"While the Commission will make every effort to send call letters for interview to the eligible candidates well in advance the candidates are advised in their own interest to-be in touch with the Commission office as well as the local newspapers and Radio, TV through which the dates of interview will also be announced. The Commission shall not entertain any claim for non-receipt of call letters by the candidates for whatever reasons after the interview is over. The prescribed qualification are minimum and mere possession of the same does not entitle candidates to be called for interview. Where the Commission consider that the number of candidates who have applied for the post to be filled up by direct recruitment on the basis of interview is large and it is not convenient or possible for the Commission to interview all the candidates, the commission may restrict the number of candidates for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and/or qualifications and experience higher than the minimum prescribed in the advertisement as may be fixed by the Commission or by holding a written test.
Provided further that the marks secured by the candidates in the screening test shall not be taken into account for determining the final order of merit.
Provided further that the number of candidates to be called for the interview on the basis of screening test shall not be more than ten times the number of clear vacancies referred to the Commission."
22. On plain reading of the advertisement notice, the candidates were supposed to know that the selection would be made only on the basis of interview and that the proposed written test, if any, would be in the nature of qualifying test for the purpose of short listing.
23. We shall come to the question as to whether having participated in the selection process and taken chance of success, the unsuccessful candidates can make any grievance of the selection procedure, a little later in this judgment. At this stage we would only observe that the basis of selection being interview alone - a fact which was known to all the intending candidates, the question as to proportion of allocation of marks for the interview does not really seem to be of significance as observed in case of Anzar Ahmad (supra). In that case, selection on the basis of 50% marks for the interview and the rest 50% marks for the academic results of the candidates was upheld observing that in view of the decision of the State Government selection could be made on the basis of interview alone. The Commission however, in accordance with past practice made selection keeping in view, also, the academic performance. By giving equal weight to academic performance, the Commission rather reduced the possibility of arbitrariness. It would be useful to quote the relevant observations as under; -
"In the instant case, we find that the State Government in its letter dated September 20, 1990 has clearly stated that selection should be made on the basis of interview. On the basis of this letter the Commission could have made the selection wholly on the basis of marks obtained at the interview. But in accordance with the past practice, the Commission has made the selection on the basis of interview while keeping the view the academic performance and with that end in view the Commission has allocated 50% marks for academic performance and 50% marks for interview. It cannot be held that the said procedure adopted by the Commission suffers from the vice of arbitrariness. By giving equal weight to academic performance the Commission has rather reduced the possibility of arbitrariness."
24. The significance of the interview/viva voce test was explained by the Supreme Court in Lila Dhar v. State of Rajesthan (supra) in these words:
"It is now well recognized that while a written assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview test, there are yet no written tests which 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 decisions, ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree or error, by an interview test, much depending on the constitution of the interview Board." It is true that where selection is made on the basis of interview alone-like cases where the allocation of interview marks is more than the written test, there is always possibility of the selection going astray for extraneous considerations. However, as is often said, suspicion howsoever strong cannot take the place of proof. And where challenge is made to the validity of selection in a court of law, the Court has to go by the materials on record rather than by bald suspicion and surmises. In the case of Ashok Kumar Yadav (supra) (which was a case of selection on the basis of written test as well as interview), the Supreme Court noticed that out of first 16 candidates who topped the list in the written examination, 10 secured poor marks at the viva voce test and could not be selected. Similarly, out of first 16 candidates who topped the list on the basis of combined marks obtained in the written examination and the viva voce test, 12 could come in the list only on account of high marks obtained at the viva voce test, though the marks obtained by them in the written examination were not sufficiently high. The Court observed that this creates suspicion in one's mind that some element of arbitrariness might have entered the assessment in the viva voce examination, but nevertheless rejected the contention put forward on behalf of unsuccessful candidates observing "suspicion cannot take place of proof and it is not possible to strike down the selections made on the ground that the evaluation of the merits of the candidates in the viva voce examination might be arbitrary".
25. The selection in the instant case was made by the Public Service Commission-a Constitutional body- with the help of experts. No allegation of mala fide has been made against the members of the Commission and/or Experts. No material has been brought on record- or at least brought to our notice - on the basis of which conclusion could be reached - or at least a probe could be made- that the impugned selections were arbitrary, made on extraneous considerations.
26. If, as noticed above, even where selection is made on the basis of both the written test and the viva voce test, no hard and fast rule can be laid down as to the percentage of allocation of marks for the viva voce test, where selection is made only on the basis of interview-which is permissible in law, the selections cannot be invalidated on the ground of very high, disproportionate allocation of marks for the interview/viva voce test. Indeed, even though in terms of the recruitment rules and the advertisement notice, the selection was to be made on the basis of only interview, the Commission made selection as per rule 51 of its Business Rules in terms of which the interview/viva voce test accounts for 71% of the total marks -a situation akin to the one in the case of Anzar Ahmad v. State of Bihar (supra) where though in terms of government's decision, the selection could be made on the basis of interview alone, the Commission made the selection taking into account the academic performance of the candidates as well as in accordance with the 'past practice'. In the instant case, this was in accordance with a statutory rule, that is, rule 51.
27. It is true that rule 51 has been struck down by a Full Bench of this Court in the case of Dr. Inder Parkash Gupta v. State of J&K (SWP No. 211/1994 decided on 30-01-1999), wherein the earlier view expressed by the Division Bench in the case of Abdul Wahid Zargar was not approved. It was stated on behalf of respondents that special leave petition/civil appeal against the said judgment in Dr. Inder Parkash Gupta's case is pending in the Supreme Court. That apart, in our view, even if rule 51 of the Business Rules of the Commission were to be held to be invalid, the question still would remain as to whether the impugned selection can be invalidated on account of allocation of 71% marks for the interview/viva voce test as against 29% allocation of marks for the record. From the break up of the allocation of marks under rule 51 of the Business Rules of the Commission, it appears that in making selection, at the time of interview, the Commission/Experts must have taken into account the over-all personality of the candidates as evidenced by not only his academic merit which accounts for 25 marks, besides 5 marks for the higher qualification, also his experience in the concerned speciality/sub-speciality/subject/discipline, and his activities in sports/games and the NCC. In this connection it may be apposite to refer to the observation of the Supreme Court in the case of Dr. Anita Purl (supra) as under: -
"In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held."
28. The observations made in the case of Lila Dhar v. State of Rajesthan (supra) quoted hereinabove (reiterated in Ashok Kumar Yadav's case), highlighting the significance of the interview/viva voce test may also be kept in mind while considering the correctness and propriety of the selection- on the basis of both written test as well as interview or interview alone.
29. It is true that ideal situation would be that selection is made on the basis of both written test and viva voce test and the viva voce marks are kept at the minimum especially for recruitment to the entry posts, but it is not for the Courts to lay down the basis of selection. It is for the Government to do so.
30. As indicated above, the submissions of the counsel for the respondents also was that having participated in the selection process without any protest, the appellants are estopped from challenging the same on the ground of dis-proportionate allocation of marks for the viva voce test. The submission is well founded and in accord with the decisions of the Supreme Court, such as, to cite a few of them, Om Parkash Shukla v. Akhilesh Kumar Shukla, 1986 (Supp) SCC 285, Madan Lal v. State of Jammu and Kashmir, 1995(3) SCC 486 and Union of India v. N. Chanderashekhara, 1998(3) SCC 534.
31. In the case of Om Parkash Shukla, it was held that where the candidate appeared at the examination without protest but later filed petition challenging the examination when he found that he would not succeed in the examination, he was not entitled to any relief. In the case of Madan Lal, it was observed that unsuccessful candidates who had taken chance of being selected at the interview, does not possess the locus-standi to impugn the selection on the ground of unfairness of interview process. In the case of N. Chanderashekhara (supra) it was hold that where the candidates were aware of the procedure of selection before appearing at the test, they cannot turn around and contend later, when they found that they are not selected, that the marks prescribed for interview and confidential report were disproportionately high and that the authorities could not fix the minimum marks to be secured by the candidate either at the interview or in the assessment of the confidential report.
32. It is clear that in the instant case too, the appellants took chance of success. When they were not selected, they came forward impugning the selection process on the ground of disproportionate allocation of marks for the interview/viva voce test. They cannot say that they were unaware of the procedure. It is apparent that had they been selected, they would have rather defended the procedure rather than impugned it. Having thus participated in the selection, without any demur, and taken choice of being selected, they are estopped from challenging the selection on the ground of so called invalid selection procedure. The contention put forward on behalf of the appellants is thus rejected.
33. In the above premises, both the contentions advanced on behalf of the unsuccessful candidates having been rejected, the connected appeals are fit to be dismissed.
34. Coming to the appeal of Gul Syed, that is LPA (SW) No. 513/1998, it is not in dispute that he was called for interview even though he did not qualify at the written test which was in violation of the laid down procedure and the advertisement notice. The stand of the Commission was that he was called for interview in accordance with the norm of calling three candidates for one post in the ratio of 3 : 1, in the Actual Line of Control (ALC) category. However, one Subash Singh and Hamid Ahmed were also called for interview on representation as they had secured higher marks, by relaxing 3 : 1 ratio rule. The learned Single Judge observed that even if it was a case of mistake, there was no obligation to interview Gul Syed alongwith Subash Singh and Hamid Ahmed. It is quite intriguing, as the learned Judge observed, to find that Gul Syed was not only called for interview but he was also selected ignoring the claim of those who fell within the eligibility criteria on the basis of screening test. In the circumstances, the learned Single Judge rightly cancelled the selection of appellant Gul Syed. We find no error in the finding of learned Judge to warrant interference. His appeal too is, therefore fit to be dismissed.
35. In the result, all the four appeals are dismissed but without any orders as to costs.