Tripura High Court
Sri Sudip Debnath vs The State Of Tripura on 4 June, 2020
Author: Akil Kureshi
Bench: Akil Kureshi
Page - 1 of 18
HIGH COURT OF TRIPURA
AGARTALA
W.P(C) No.764 of 2016
Sri Sudip Debnath, S/o. Sri Subodh Debnath, R/o. Abhoynagar, P.O.-
Abhoynagar, P.S. East Agartala, District- West Tripura.
............... Petitioner(s).
Vs.
1. The State of Tripura, represented by its Secretary cum
Commissioner, Tribal Welfare Department, Government of Tripura,
P.O. Kunjaban, P.S.- New Capital Complex, District- West Tripura.
2. The Director, Tribal Welfare Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura.
3. Tripura Public Service Commission, represented by its Secretary,
Akhaura Road, P.O. Agartala, P.S. West Agartala, District- West
Tripura.
4. Sri Sukanta Pal, S/o. late Sukumar Pal (notice to be served through
the respondent No.2 i.e. the Director, Tribal Welfare Department,
Government of Tripura, P.O. Agartala, P.S. West Agartala, District- West Tripura.
............... Respondent(s).
_B_E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI For Petitioner(s) : Mr. Arijit Bhaumik, Advocate, Mr. Anujit Dey, Advocate, Mr. S. Rahman, Advocate.
For Respondent(s) : Mr. D.K. Biswas, Advocate, Mr. D. Sharma, Addl. G.A., Mr. Raju Datta, Advocate.
Date of hearing : 26th May, 2020.
Date of Judgment : 4th June, 2020.
Whether fit for reporting : NO.
Page - 2 of 18
J U D G M E N T & ORDER
The petitioner has challenged the selection process to the post of Senior Research Officer under the directorate of Tribal Welfare Department, Government of Tripura which was conducted pursuant to an advertisement dated 6th December, 2014. Main ground of the petitioner is that high marks were allotted to the oral interviews, thereby leaving unguided powers to the recruiting agency. The petitioner would point out that he had secured higher marks in the written examination than the selected candidate who was given excessive marks in the oral interviews to push his grand total beyond that of the petitioner and other candidates in the fray.
[2] Brief facts are as under :
Respondent No.3 Tripura Public Service Commission (TPSC, for short) issued an advertisement dated 06.12.2014 inviting applications for filling up of various posts in the departments of the Government of Tripura. One of the posts notified was 1(one) vacancy in the cadre of Senior Research Officer, Group-A Gazetted post in the Pay Scale of Rs.13575 - 37000/- in the Pay Band-4 in the Grade Pay of Rs.4500/-. The petitioner duly qualified for the post in question applied in response to the said advertisement. TPSC conducted a written examination of 100 marks on 18.11.2015. The petitioner appeared in the said written examination and was awarded 65 out of 100 marks. The respondent No.4 also appeared and Page - 3 of 18 scored 61 out of 100 marks in the said examination. The petitioner along with the other shortlisted candidates was called for oral interviews. TPSC recommended respondent No.4 for the post in question after a combined tally of the written and oral examinations. It appears that the respondent No.4 was awarded 72.47 marks in the viva-voce comprising 100 marks. The petitioner was given 55.35 marks in the viva-voce. The petitioner has, therefore, challenged the said selection process and the appointment of the respondent No.4 primarily on the ground that the allotment of 100 marks for viva-voce out of a total of 200 was excessive. The petitioner heavily relied on the decision of the Supreme Court in case of Ashok Kumar Yadav and others versus State of Haryana and others reported in (1985) 4 SCC 417.
[3] Learned counsel appearing for the petitioner submitted that the official respondents committed a serious error in allocation of 100 marks for viva-voce and 100 marks for the written examination. Thus, viva-voce was given 50% weightage which was excessive and clearly contrary to the decision of the Supreme Court in case of Ashok Kumar Yadav (supra). He pointed out that in Ashok Kumar Yadav (supra) the Supreme Court had suggested that the weightage of viva-voce should not be more than 12.5%. He contended that the allocation of marks for viva- voce was not made public by the TPSC. It was only when the petitioner Page - 4 of 18 made further inquires that the said allocation of marks came to his knowledge. Therefore, the fact that the petitioner had participated in the selection process, would not preclude him from challenging the selection process. Counsel also relied on the decision of this Court in case of Tanmoy Nath and others versus State of Tripura and others reported in (2014) 2 TLR 731 to contend that in the said case this Court had disapproved allocation of 100% marks for the oral interviews. [4] On the other hand, Mr. D. Shama, learned Additional Government Advocate submitted that the petitioner having participated in the selection process, is stopped from challenging the validity thereof. In support of his contention, he relied on following decisions :
(i) Manish Kumar Shahi versus State of Bihar and others reported in (2010) 12 SCC 576;
(ii) Ashok Kumar and another versus State of Bihar and others reported in (2017) 4 SCC 357;
(iii) D. Sarojakumari versus R. Helen Thilakom and others reported in (2017) 9 SCC 478.
He pointed out that in case of Manish Kumar Shahi (supra) the Supreme Court had upheld allotment of 200 out of 850 marks for viva- voce. He further submitted that the entire selection process was carried out Page - 5 of 18 in a fair and transparent manner. The candidate who had secured highest combined marks was appointed on the post in question. [5] Mr. Raju Datta, learned counsel appearing for the TPSC opposed the petition contending that out of the 100 marks to be awarded during the viva-voce, 40 marks were for educational qualifications and which was non-discretionary. With respect to remaining 60 marks the interview panel had any discretion. Thus, only 60 out of 200 marks were allotted for the oral interview performance which comes to barely 30% of the oral tally of marks and which cannot be stated to be excessive. He submitted that the petitioner who had participated in the selection process cannot challenge the validity thereof. In support of this contention, he relied on following decisions.
(i) In case of Madras Institute of Development Studies and another versus K. Sivasubhramaniyan and others reported in (2016) 1 SCC 454;
(ii) In case of D. Sarojakumari versus R. Helen Thilakom and others reported in (2017) 9 SCC 478.
[6] Learned counsel for respondent No.4 the selected candidate also opposed the petition contending that the allocation of marks for the viva-voce was made public well in advance. The petitioner was aware Page - 6 of 18 about the method of selection. He, therefore, cannot challenge the selection process, having failed to get selected. He submitted that allocation of 30% marks for viva-voce is not excessive. Even otherwise, the gap of total marks between the petitioner and the respondent No.4 is quite wide. The petitioner was thus not found to be meritorious enough to be appointed. He, therefore, submitted that the petition be dismissed. [7] In reply to the petition, an affidavit in reply was filed by the Under Secretary, TPSC in which it was pointed out that total marks to be allotted in the oral interview were subdivided in 3(three) parts which was decided in advance by the TPSC. He has also stated that the marks to be allotted during such interviews were notified by the TPSC well in advance. Annexures filed along with the said affidavit would show that out of 100 marks to be allotted during such oral interviews, 40 marks were to be awarded for academic achievements and experience. The distribution of marks was also pre-decided. For example, for Madhyamik or equivalent educational qualification 5 marks would be awarded, for H.S or equivalent another 5 marks, for Graduation or equivalent 10 marks and for Post Graduation or equivalent 15 marks. 5 marks to be awarded for experience. Thus, the allocation of these 40 marks out of 100 during oral interview was totally non-discretionary. Remaining 60 marks were subdivided into 2(two) parts. 30 marks to be awarded for knowledge of preparation of plan, Page - 7 of 18 data analysis, Tribal Welfare Schemes etc. and another 30 marks for analytical power, professional attitude, knowledge, communication skills, personality etc. [8] On the request of the Court Sri Raju Datta, learned counsel had also produced a result sheet of the marks allotted to all candidates by the panel of interviewers during the oral interview. This would show that the TPSC had drawn a panel of 5 experts in the field who had individually assessed each candidate head wise and allocated marks out of 60 which were totalled and an average thereof was adopted. The final tally would include a non-discretionary element of 40 marks to be awarded. In the process the petitioner was awarded 55.33 marks and the respondent No.4 was awarded 72.47 marks. We may recall that the petitioner had secured 65 out of 100 marks in the written test and the respondent No.4 had secured 61 out of 100 in the said examination.
[9] The entire legal controversy raised by the petitioner needs to be judged in the background of such facts. However, before doing that, it may also be noted that the respondent No.4 has filed a separate affidavit dated 11.01.2017 in which he has strongly contended that all candidates including himself and the petitioner were aware about the allocation of 100 marks in the oral interview. He contended that the website of the TPSC itself carried this information. A notification dated 02.11.2015 was also Page - 8 of 18 published. Another notification dated 15.02.2016 was also available on the website of the TPSC. Copies of these notifications dated 02.11.2015 and 15.02.2016 have been produced on record at Annexures A and B to the said affidavit in reply. In the notification dated 02.11.2015 the TPSC had specifically declared that "It is for information of all concerned that total marks allotted for Interview/Personality test is 100 for direct recruitment to the posts through Non-Scheduled Examination. A candidate must have to secure the qualifying marks in the interview [50 (fifty) marks for UR & 40(forty) marks for SC, ST, PH, Ex-Serviceman] to be considered for final selection/recommendation. The final selection/recommendation will be made in order of merit on the basis of total marks obtained by the candidates in the Screening Test and Interview/Personality Test or on the basis of marks obtained by the candidates in the Interview/Personality test where no such Screening Test is conducted."
[10] This is a clinching piece of evidence to hold that the petitioner's averment in the petition that the marks to be allotted during the oral interview were not made public by the TPSC previously is totally incorrect. The marks to be allotted in the oral interview were in the public domain and the petitioner was supposed to be aware about the same. Thus, the petitioner participated in the said selection process fully aware about the selection process and composition of marks for written as well as oral Page - 9 of 18 examinations. By a settled law the petitioner would be precluded from challenging the validity of such examination. It is not necessary to duplicate various decisions cited by the counsel for the respondents on the point. The Courts proceed on the basis that a candidate fully aware about the method of selection participates in such a selection process, take such a chance of being selected. If he thereafter fails to get selected, he would be precluded from challenging the validity of the selection. It is, therefore, not open for the petitioner to question the allocation of marks for the oral interview.
[11] Even otherwise, on merits I do not find that the petitioner has made out any case for interference. The Supreme Court in case of Ashok Kumar Yadav (supra) did not lay down as a rigid inflexible rule that in every selection process, marks for oral interview cannot exceed 12.5% of the total. The Supreme Court in case of Lila Dhar versus State of Rajasthan reported in (1981) 4 SCC 159 had made certain significant observations in this respect which read as under :
"6. Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the Page - 10 of 18 interview-test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu, Ajay Hasia v. Khalid Mujib Sehravardi, and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great a weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service. the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service Commission.
7. In this background, let us now examine the situation presented by the Rajasthan rules. The Rajasthan Judicial Service rules have been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the Rajasthan Public Service Commission. The High Court may be expected to know the precise requirements of the judicial service of the State and the calibre of the available source- material, while the Public Service Commission is an expert body thoroughly conversant with recruitment policies and selection methods. Both the High Court and the Public Service Commission are independent bodies, outside executive control, occupying special positions and enjoying special status under the constitution. Neither is an outside agency. Both are well- acquainted with the particular needs of their State and the people. If the Governor, in consultation with the High Court and the Public Service Commission of the State makes rules stipulating seventy-five percent of the marks for the written examination and twenty-five percent for the interview-test, on what basis can a Court say that twenty-five percent for the interview-test is on the high side? It must not also be forgotten Page - 11 of 18 that the interview test is generally conducted and was, in the present case, conducted by a body consisting of a Judge of the High Court, the Chairman and a Member of the Public Service Commission and a special invitee expert. There can surely be no legitimate grievance or hint of arbitrariness against this body. Yet another factor worthy of consideration is that the candidates expected to offer themselves for selection are not raw graduates freshly out of college but are persons who have already received a certain amount of professional training. The source-material is such that some weightage must be given to the interview-test and can it possibly be said that twenty-five per cent of the total marks is an exaggerated weightage. We may add here that it has been made clear by the Chairman, Rajasthan Public Service Commission on whose behalf a counter-affidavit has been filed before us that the marks obtained by the candidates at the written examination were not made available to the members of the Interview Board either before or at the time of the interview. We are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview-test.
9. Both the cases cited before us Periakaruppan case and Ajay Hasia case were cases of admission to colleges. We have already pointed out that the provision for marks for interview- test need not and cannot be the same for admission to colleges and entry into public services. In fact in Periakaruppan case, even in the case of college admissions the Court observed:
"While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power".
It is true that in Periakaruppan case the Court held that the non-allocation of marks under various heads in the interview- test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was thought that the failure to allocate marks under each head or distinct test was an illegality. But, in the case before us, the rule merely and generally indicates the criteria to be considered in the interview-test without dividing the interview- test into distinct, if we may so call them, sub-tests. We do not think that Periakaruppan case, which, as we said, deals with admission to a college, affords any true guidance to us. Ajay Hasia case was also a case of admission to a college. The Court while upholding the interview-test as not irrational or Page - 12 of 18 irrelevant though unsatisfactory and capable of abuse, made the following observation:
"We would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification".
The Court then proceeded to consider the next question raised before them, whether the allocation of 33 1/3 percent of the total marks for the interview-test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for selection of candidates for the Indian Administrative Service the marks allocated for the interview-test were only 12.2 percent of the total. It was then observed, "under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid".
The observations of the Court were made, primarily, in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in the matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us the weight to be given to the interview-test should depend on the requirement of the service to which recruitment is made, the source-material available for recruitment, the composition of the Interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be re- writing the rules but we guard ourselves against being understood as saying that we would not interfere even in cases Page - 13 of 18 of proven or obvious oblique motive. There is none in the present case. The writ petition is therefore dismissed but in the circumstances there will be no order regarding costs." [12] The decision of the Supreme Court in case of Lila Dhar (supra) was also noted by the Supreme Court in case of Ashok Kumar Yadav (supra). A later decision in case of Manish Kumar Shahi versus State of Bihar and others (supra) the Supreme Court explained the decision in case of Ashok Kumar Yadav (supra) and made following observations :
9. Thirdly, it is difficult to see how the Division Bench of the High Court could possibly undertake an inquiry into the question whether the Chairman and members of the Haryana Public Service Commission were men of integrity, calibre and qualification or not. It was a totally irrelevant inquiry, because even if they were men lacking in integrity, calibre and qualification, it would not make their appointments invalid, so long as the constitutional and legal requirements in regard to appointment were fulfilled. Article 316 of the Constitution makes provision for appointment and term of office of members of a State Public Service Commission. Clause(1) of this Article provides that the Chairman and members of a State Public Service Commission shall be appointed by the Governor of the State and the proviso to that clause enacts that "as nearly as may be one half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years"
under the Government of a State. Clause(2) of Article 316 declares that a member of a State Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty-two years, whichever is earlier. Article 319 lays down inter alia that on ceasing to hold office, the Chairman of a State Public Service Commission shall not be eligible for any employment under the Government of India or the Government of a State, save and except that of Chairman or any other member of the Union Public Service Commission and similarly, a member of a State Public Service Commission. These are the only provisions in the Constitution bearing on the appointment of Chairman and members of a State Public Page - 14 of 18 Service Commission. Now concededly none of these constitutional provisions was violated in making appointments of the Chairman and members of the Haryana Public Service Commission nor was any legal provision breached and the appointments of the Chairman and members of the Haryana Public Service Commission were made in conformity with the constitutional and legal requirements. If that be so, it passes our comprehension as to how the appointments of the Chairman and members of the Haryana Public Service Commission could be regarded as suffering from any infirmity or any selections made by them could be said to be vitiated, merely on the ground that they were not, in the opinion of the Division Bench of the High Court possessed of integrity, calibre or qualification. We may take an analogy to illustrate the point we are making. Suppose a District Judge is appointed by the Governor of the State in consultation with the High Court in accordance with the requirements of Article 233 and the appropriate rules made in that behalf. Can a judgment delivered by him be assailed as invalid on the ground that he has not the requisite integrity, calibre or qualification? The judgment may be set aside if it is wrong but not because it is given by a Judge who is lacking in integrity, calibre or qualification. Similarly, selections made by the Chairman and members of the Haryana Public Service Commission may be quashed if they are found to be vitiated by the influence of extraneous considerations or are made in breach of the rules, but they cannot be invalidated merely by showing in a general sort of way that they were not men possessed of high integrity, calibre or qualification.
15. But the question still remains whether the selections made by the Haryana Public Service Commission could be said to be vitiated on account of the fact that Shri R.C. Marya and Shri Raghubar Dayal Gaur participated in the selection process, though Trilok Nath Sharma who was related to Shri Raghubar Dayal Gaur and Shakuntala Rani and Balbir Singh both of whom were related to Shri R.C. Marya, were candidates for selection. It is undoubtedly true that Shri Raghubar Dayal Gaur did not participate when Trilok Nath Sharma came up for interview and similarly Shri R.C. Marya did not participate when Shakuntala Rani and Balbir Singh appeared for interview at the viva voce examination. But, according to the petitioners, this was not sufficient to wipe out the blemish in the process of selection for two reasons: firstly, because Shri R C. Marya and Shri Raghubar Dayal Gaur participated in the interviews of the other candidates and that gave rise to a reasonable apprehension in the mind of the candidates that Shri R.C. Marya and Shri Raghubar Dayal Gaur might tend to depress the marks of the other candidates with a view to ensuring the selection of the candidates related to them and secondly, because there could be reasonable apprehension in Page - 15 of 18 the mind of the candidates that the other members of the Haryana Public Service Commission interviewing the candidates might, out of regard for their colleagues, tend to give higher marks to the candidates related to them, The argument of the petitioners was that the presence of Shri R.C. Marya and Shri Raghubar Dayal Gaur on the interviewing committee gave rise to an impression that there was reasonable likelihood of bias in favour of the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur and this had the effect of vitiating the entire selection process. This argument was sought to be supported by the petitioners by relying on the decisions reported in D.K. Khanna v. Union of India, Surinder Nath Goel v. State of Punjab and M. Ariffudin v. D.D. Chitaley. We do not think this argument can be sustained and for reasons, which we shall presently state, it is liable to be rejected.
16. We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a Welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision-making process of a selection committee constituted for selecting officers to the Indian Forest Service in A.K. Kraipak v. Union of India. What happened in this case was that one Naquisbund, the acting Chief Conservator of Forest, Jammu and Kashmir was a member of the Selection Board Page - 16 of 18 which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J. speaking on behalf of the Court countered the argument that Naquisbund did not take part in the deliberations of the Selection Board when his name was considered, by saying:
"But then the very fact that he was a member of the Selection Board must have had its own impact on the decision of the Selection Board. Further, admittedly, he participated in the deliberations of the Selection Board when the claims of his rivals ... was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board, there was a conflict between his interest and duty . ... The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased .......... There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct."
This Court emphasised that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of basis is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection.
Page - 17 of 18 In this decision the Supreme Court also reiterated the principle that one who participates in a selection process without any demurrer, is later on estopped from challenging the validity of such selection process.
[13] In the present case, we have noted that out of 100 marks to be allotted during oral interview, 40 marks were for educational qualifications and experience and which was substantially non-discretionary. Only 60 marks had a discretionary element. Thus, out of a total of 200 marks (100 for written test and 100 for oral interviews) only 60 marks were to be awarded for the performance of a candidate during the oral interview. The percentage of marks for oral interview would thus come down to 30% of the total. The same, in facts of the present case cannot be stated to be excessive. The Supreme Court has in none of the decisions laid down a rigid and inflexible formula that the percentage of marks to be allotted for oral interview cannot exceed a certain threshold level. [14] Even otherwise, the gap of total marks between the petitioner and the respondent No.4 is sufficiently wide so that even though the proportion of the marks for performance during the oral interview is high and brought down to 15% which in any case would be close to by the petitioner's advocates on the basis of the judgment of the Supreme Court in case of Ashok Kumar Yadav (supra), no significant difference in the Page - 18 of 18 final analysis would be made. The result sheet produced by Shri Raju Datta, learned counsel for the TPSC would show that the petitioner was awarded 15.20 out of 30 and 16.40 out of 30 marks comprising a total of 60 marks. As against this, respondent No.4 was awarded 24.20 out of 30 marks and 24.00 out of 30 marks under the same heads. The petitioner thus secured a total of 31.60 out of 60 as against 48.20 out of 60 scored by respondent No.4. The petitioner has not made any allegation of mala fides against the members of the interview board. The marks allotted by independent experts, therefore, have to be accepted as they are. Quick calculations would reveal that even if the marks for performance in the oral interview is reduced from 60 to 30, the petitioner would not be able to breach the gap between himself and the respondent No.4 in the final tally of marks and would thus not merit selection ahead of the said respondent in any case.
[15] For all these reasons, I find no merit in the petition and the same is, accordingly, dismissed. Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Dipesh.