Uttarakhand High Court
Nirmal Singh vs High Court Of Uttarakhand & Others on 21 May, 2019
Equivalent citations: AIRONLINE 2019 UTR 758
Author: R.C. Khulbe
Bench: Ramesh Ranganathan, R.C. Khulbe
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 111 of 2018
Nirmal Singh ... Petitioner
Versus
High Court of Uttarakhand & Others ... Respondents
Mr. Ajay Veer Pundir, learned counsel for the petitioner.
Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand-respondents 2
and 3.
Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service
Commission-respondents 4 and 5.
Mr. Sandeep Tandon, learned Standing Counsel for the Central Bureau of Investigation-
respondent no. 7.
Judgment Reserved: 16.05.2019
Judgment Delivered: 21.05.2019
Chronological list of cases referred:
1. AIR 1997 SC 2618.
2. (2018) 7 SCC 254
3. (1993) 1 SCC 17
4. AIR 1992 SC 1806
5. (2013) 5 SCC 169
6. (1999) 3 SCC 653
7. (2008) 8 SCC 633
8. (2012) 9 SCC 545
9. (2003) 9 SCC 401
10. AIR 1990 SC 434
11. (2018) 8 SCC 53
12. AIR 1991 SC 1260
13. (1974) 4 SCC 3
14. (1979) 3 SCC 165
15. AIR 1977 SC 448
16. (2005)7 SCC 764
17. (2007) 8 SCC 418
18. (1964) 4 SCR 733
19. (1884)29 Ch.D 459
20. (1986) 1 SCC 133
21. (2008) 12 SCC 292
22. (2002) 4 SCC 160
23. (2004) 11 SCC 402
24. (1993) 1 SCC 148
25. ILR 1951 Cuttack 441
26. ILR 1952 Cuttack 529
27. AIR 1957 SC 397
28. (2010) 4 SCC 192
29. (2009) 1 SCC 441
30. 1988 Supp SCC 482
2
31. (1994) 1 SCC 536
32. (2001) 3 SCC 333
33. 2010(1) Supreme Today 707
34. (2008) 2 SCC 409
35. (2010) 8 SCC 582
36. (2002) 5 SCC 521
37. (2018) 10 SCC 753
38. (2010) 3 SCC 571
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J.
This writ petition is filed seeking a writ of certiorari to call for the records of the selection of the petitioner as well as the sixth respondent, including the final result dated 28.02.2018, and to quash the said result; a writ of mandamus commanding the fourth respondent to include the name of the petitioner, in the OBC category, in the Uttarakhand Judicial Services Examination, 2016; and a writ of mandamus commanding the seventh respondent-CBI to investigate the matter, and take appropriate action against the persons responsible, including officials of the fourth respondent.
2. Facts, to the extent necessary, are that the petitioner passed his L.L.B. examination in the year 2008 from H.N.B. Garhwal University, and holds a Masters Degree in Law. An advertisement was issued by the fourth respondent-Uttarakhand Public Service Commission to fill up eight vacant posts of Civil Judges (Junior Division) in the Uttarakhand Judicial Services on 15.03.2017. Of these eight vacant posts, two were reserved for the OBCs', to which category the petitioner belongs. The petitioner submitted his application, pursuant to the said advertisement dated 15.03.2017, for being considered for selection and appointment to the post of Civil Judge (Junior Division). The petitioner appeared in the preliminary examination 3 but was declared unsuccessful in the results declared on 28.08.2017. Aggrieved thereby, the petitioner filed Writ Petition (S/B) No. 404 of 2017 and an interim order was passed therein, by a Division Bench of this Court on 18.09.2017, permitting the petitioner to participate provisionally in the main examination. The petitioner appeared in the main examination, which was conducted by the fourth respondent, from 30.10.2017 to 02.11.2017 and secured 421 marks out of 850, and 70 marks out of 100 in the subject of computers.
3. The petitioner alleges that, due to the connivance between respondents 4 to 6, he was awarded only 31 marks out of 100 in the interview; respondents 5 and 6 were near relatives; and, just to give undue benefit to the sixth respondent, 60 marks were awarded to him despite the fact that he had secured only 400 marks out of 850 in the written examination, and had secured only 51 marks out of 100 in the subject of computers.
4. The petitioner alleges that the fourth respondent, under the undue influence of the fifth respondent and just to favour to the sixth respondent, had deliberately awarded 31 marks to him in the interview, whereas the sixth respondent was awarded 60 marks resulting in his being declared successful, and his being appointed to the post of Civil Judge (Junior Division) under the OBC category; the said selection, culminating in the declaration of results on 28.02.2018, is an example of nepotism; the fifth respondent, being a near relative of the sixth respondent, should not have 4 been a member of the Interview Board; the fourth respondent had awarded lesser marks to the petitioner both in the preliminary as well as in the main examination, as also in the interview; if the answer sheets were properly evaluated, the petitioner would have secured more marks in the main examination than the 421 marks he was given; respondents 4 to 6 have committed offences under the Prevention of Corruption Act, which should be investigated by the C.B.I; the impugned action of the respondents is in violation of Articles 14, 15 and 16 of the Constitution of India; and the action of the fourth respondent, in rejecting the petitioner's candidature, is malafide and illegal. The petitioner would again reiterate that the fifth respondent is a near relative of the sixth respondent, and he should therefore not have been a Member of the Interview Board.
5. In the counter affidavit, filed on behalf of the fourth respondent- Uttarakhand Public Service Commission, it is stated that, in terms of the advertisement, two posts were reserved in favour of the OBC category; in accordance with the prevailing Government Orders, 30% of the seats are reserved for the Women, and the benefit of such reservation is to be extended category-wise; since there were two posts reserved in favour of the OBC category, 30% of two posts comes to 0.6 and, therefore, one post was reserved in favour of OBC Women; the petitioner was found eligible, his application form was accepted, and he was issued an admit card; the petitioner obtained 146 marks in the preliminary examination, whereas the last selected candidate had scored 146.75 marks and he was, therefore, held not to have qualified; at every level of the written examination, the question 5 papers and the answer-keys are set by subject experts, and evaluation is done accordingly; there is no interference of any member or officials of the Public Service Commission in this process; after its receipt from the examiner, the marks are tabulated for preparing a merit list and, thereafter, results are declared merit-wise and category-wise; before the results are finalized, objections are also invited from candidates to the key answers; only thereafter is the merit list prepared; the petitioner's objections were considered before the results were declared; however, in view of the interim order passed in Writ Petition (S/B) No. 404 of 2017, the petitioner was provisionally allowed to participate in the main examination and, since he qualified therein, he was called for the interview; the allegations that the petitioner was awarded 30 marks because of the connivance of respondents 4 to 6 is false; marks in the interview were awarded by the Interview Board after judging the personality, intelligence, ability to express, performance, knowledge of the subject and ability of the candidate to explain; the recruitment process undertaken was for the post of Civil Judge (Junior Division) which is regulated by the Uttarakhand Judicial Service Rules; a sitting Judge of the Uttarakhand High Court is also a Member of the Board; and interviews were conducted on 26.08.2018, by a six member Board consisting of Retd. Major General A.S. Rawat (Chairman of the Uttarakhand Public Service Commission), Justice Rajiv Sharma (Judge of the Uttarakhand High Court), Mr. Sanjay Sharma (Member of the Uttarakhand Public Service Commission) and three subject experts. 6
6. It is further stated that the fifth respondent-Dr. Professor Jagmohan Singh Rana was not a Member of the Interview Board; the fifth respondent and Professor (Dr.) Narender Singh Bhandari were recently appointed as Members of the Public Service Commission and, in accordance with the established procedure, newly appointed members are invited to watch and observe the proceedings of the Interview Boards, and the Departmental Promotion Committees, to enable them to undertake the same process independently in future; the fifth respondent was invited as an observer, in the subject interview process, which was held on 26.02.2018; the other Member i.e. Professor Dr. Narender Singh Bhandari was invited to be an observer, in the subject interview process, held on 27.02.2018; the petitioner secured only 31 marks in the interview, and failed to secure a place in the merit list; the candidate at Serial No. 2 in the merit list, i.e. Km. Pallavi Gupta with Roll No. 406770, had secured only 32 marks in the interview, but was selected, whereas the candidate with Roll No. 404486 had secured 60 marks in the interview and did not qualify; the fifth respondent has informed that he did not even know the sixth respondent nor was he even distantly related to him; the fifth respondent was neither a member of the Interview Board, nor did he participate in the interview proceedings; he was only an observer and nothing more; there is no Rule or procedure, in the Public Service Commission, for re-evaluation of answer sheets in the main examination; and the wild allegations leveled against respondents 4 to 6 are without any basis.
7
7. In his counter affidavit dated 17.05.2018, the fifth respondent, (against whom allegations of malice are leveled by the petitioner), stated that he was appointed as a Member of the Public Service Commission on 17.10.2017, and assumed charge on 27.10.2017; as per the procedure being followed in the Uttarakhand Public Service Commission, newly appointed members are invited to be present as observers in the interviews or DPC proceedings, to enable them to learn and understand so that they can independently undertake such processes in future; he was also invited by the Chairman of the Uttarakhand Public Service Commission to be an observer in the interview held on 26th and 27th of February, 2018; the Interview Board was headed by the Chairman of the Uttarakhand Public Service Commission in which Justice Rajiv Sharma (Judge of Uttarakhand High Court) and Mr. Sanjay Sharma, Member of the Uttarakhand Public Service Commission were members, along with subject experts; he did not participate in the interview proceedings as he was invited only as an observer to watch and learn the proceedings of the interview; the petitioner's allegation that the sixth respondent is his near relative is false; the sixth respondent is not a distant relative of the deponent, neither is he his neighbor, nor is he even known to him; the allegations made in this regard in the writ petition are absolutely false and malafide; because of the similar surname, of the deponent and the sixth respondent, the petitioner had made false and frivolous allegations against the deponent, which is highly objectionable; the petitioner's allegation that he was deprived of being appointed because of the connivance of respondents 4 to 6, and was awarded lesser marks, is without any basis; and since the petitioner has 8 sought to tarnish the image of the deponent, the writ petition be dismissed with exemplary costs.
8. In his rejoinder affidavit, filed in reply to the counter affidavit filed by the fifth respondent, the petitioner stated that the fifth respondent was present when he was interviewed; the father of the sixth respondent and the brother of the fifth respondent were posted together at Block Campus, Naugaon, District Uttarkashi; and, during his posting, the father of the sixth respondent was staying with the family of the fifth respondent at their native village Kanseru, Block Naugaon, District Uttarkashi.
9. Mr. Ajay Veer Pundir, learned counsel for the petitioner, would contend that the petitioner had performed exceptionally well both in the main examination and in the interview; though he secured 421 marks in the main examination as against the 400 marks secured by the sixth respondent, the fifth respondent, who was a Member of the Interview Board, had influenced the Interview Board, and had ensured that the sixth respondent was awarded 60 marks in the interview, and that the petitioner was awarded extremely low marks i.e. 31 marks; and as a result thereof, while the total marks secured by the sixth respondent were inflated to 460, the petitioner's marks were deliberately reduced to 452, thereby resulting in the sixth respondent being appointed as a Civil Judge (Junior Division) under the OBC category, and the petitioner's candidature being overlooked. 9
10. While finding fault with the evaluation of the petitioner's performance by the Selection Committee, Mr. Ajay Veer Pundir, learned counsel for the petitioner, would also state that the sixth respondent is a near relative of the fifth respondent, who was a Member of the Interview Board; the sister of the sixth respondent's father was married into the family of the fifth respondent; thus participation of the fifth respondent, in the interview process, vitiated the entire process of selection; and, as undue benefit was conferred on the sixth respondent, his appointment as a Civil Judge (Junior Division) should be set aside and the petitioner should be appointed as a Civil Judge (Junior Division) in the OBC category. Learned counsel would further state that the entire matter should be entrusted to the Central Bureau of Investigation for a detailed investigation to be caused.
11. Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission, would submit that meritorious candidates in the written examination were called for interview, strictly on the basis of their merit category-wise, in the ratio of 1:3; since eight posts of Civil Judge (Junior Division) were advertised, 20 eligible candidates were called for interview; while the marks stipulated for the main examination is from a total of 850, the marks allotted for interview is from out of 100; the Interview Board consisted of six members including the Chairman and a member of the Uttarakhand Public Service Commission, a High Court Judge nominated by the Chief Justice, besides experts in the field; the marks secured by the candidates in the written examination were not disclosed to the Interview Board; after the Interview Board completed the 10 exercise of awarding marks, the marks secured by each candidate in the interview were added to the marks secured by him in the main examination; after adding the marks secured by the candidates, both in the main examination and in the interview, a category-wise merit list was prepared; in the present case, the six member Interview Board awarded marks together for each candidate from out of a total of 100 marks; the sixth respondent was merely invited as an observer, and was not a part of the Interview Board; it has been the practice, of the Uttarakhand Public Service Commission, to place newly appointed members of the Commission as observers, who only sit and watch the proceedings of the Interview Board; they are neither consulted, nor do they participate, in the interview process; they are merely present when the candidates are interviewed by the Interview Board; this process is resorted, in order to enable the newly appointed members of the Uttarakhand Public Service Commission to gain some experience so that they can undertake such exercise independently in future; the petitioner's allegation of collusion, between respondents 4 to 6 in appointing the sixth respondent, is without any basis; and the submission, that an investigation should be caused by the Central Bureau of Investigation, is wholly unjustified.
I. IN THE EXERCISE OF ITS POWER OF JUDICIAL REVIEW, THE HIGH COURT WOULD NOT SIT IN APPEAL OVER THE DECISION OF THE INTERVIEW BOARD:
12. In this writ petition, the petitioner has questioned the selection of the sixth respondent as a Civil Judge (Junior Division) under the OBC category; and claims that it is he, and not the sixth respondent, who should have been selected and appointed to the said post. The petitioner's self serving claim 11 of exceptional merit cannot be examined by this Court in judicial review proceedings under Article 226 of the Constitution of India, nor would this Court be justified in sitting in judgment over the decision of the Interview Board in selecting a particular candidate. The Court/Tribunal can neither sit in appeal over the decision of the Selection Committee, nor can it arrogate to itself the power to judge the comparative merit of candidates, and consider their fitness and suitability for appointment. That is the function of the selection committee. (Durga Devi and Ors. vs. State of H.P. and Ors.1). Judges are not, and cannot be, experts in all fields and must, therefore, exercise great restraint. They should not overstep their jurisdiction to upset the opinion of experts. (U.P. Public Service Commission vs. Rahul Singh2).
13. Adjusting equities in the exercise of the extraordinary jurisdiction is one thing, but assuming the role of selection committee is another. The Court cannot substitute its opinion and devise its own method of evaluating the fitness of a candidate for a particular post. The Court would not evaluate the fitness or otherwise of a candidate. (Indian Airlines Corpn. vs. Capt. K.C. Shukla3). The function of a selection committee is neither judicial nor adjudicatory. It is purely administrative. In the absence of any legal requirement, no reasons need be assigned for selection or non- selection of a candidate, and principles of natural justice are not applicable. (National Institute of Mental Health and Neuro Sciences vs. Dr. K.Kalyana Raman4). One can always say that some other method would have been a better method, but it is not the function of the Court to 12 substitute what it thinks to be appropriate, for that which the selecting authority has decided as desirable. While taking care of the rights of the candidates, the Court cannot lose sight of the requirements specified by the selecting authority. The High Court cannot rewrite the rules for selection while exercising the power of judicial review. (Rajya Sabha Secretariat vs. Subhash Baloda5).
14. The Court should refrain from interference, unless the appointment so made, or the rejection of a candidature, is found to be done at the cost of "fair play", "good conscience" and "equity". (State of J&K vs. Shiv Ram Sharma6; Praveen Singh vs. State of Punjab7; and State of Gujarat vs. Arvindkumar T. Tiwari8). The marks secured in the interview are based on the assessment of the Interview Committee. Ordinarily, the Court would not sit in judgment over such assessment, and particularly in the absence of malafides or extraneous considerations attributed and established (Vijay Syal vs. State of Punjab9) to the interview committee itself.
15. The High Court cannot embark upon an exercise of deciding the relative merits of the candidates. It is not the function of the Court to sit in appeal over the decision of the Selection Committee, and scrutinize the relative merits of the candidates. The High Court would be exceeding its jurisdiction in assessing the comparative 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 expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent 13 material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. (Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan10; Union of India (UOI) and Ors. vs. Colonel Ran Singh Dudee11).
16. It is not in dispute that, in the present case, the Uttarakhand Public Service Commission had constituted the Interview Committee, consisting of a Judge of this High Court and three other subject experts, in due compliance with the law. The Interview Committee, consisting of experts in the field, selected the candidates after going through the relevant material placed before it.
17. With a view to satisfy ourselves that the selection process, undertaken by the Interview Board, was fair and reasonable, we called for the records of the Interview Board. The record placed before us discloses that the Interview Board consisted of six members, which included a sitting Judge of this Court, the Chairman (Retd. Major General A.S. Rawat) and a member (Sri Sanjay Sharma) of the Public Service Commission, besides three professors (as experts in the subject). From the proceedings of the Interview Board dated 26.02.2018, it is evident that marks were awarded, together by all the six members, to each of the 20 candidates who were called for interview. The Statement, containing details of the marks awarded by the Interview Board to each candidate, does not refer to the marks secured by these 20 candidates in the main examination (written). While the 6th respondent was no doubt awarded 60 marks in the interview, 14 there were four other candidates who were awarded more marks than him in the interview.
18. The tabular-statement prepared by the Public Service Commission, combining the marks secured by the candidates in both the written examination and in the interview, was also placed for our perusal. It is evident therefrom that, while one Km. Pallavi Gupta, who secured 488 marks in the written examination, was awarded only 32 marks in the interview by the Interview Board, she was selected as she obtained a total of 520 marks, and was second in the order of merit. However Ms. Shruti Srivastava (Roll No. 410896) in the General category, who secured 65 marks in the interview, was not selected, since she had secured only 426 marks in the written examination, and the total marks which she obtained was 491 less than the 500 marks secured by the last selected candidate in the General category. Even among candidates, in the OBC category, Ms. Tanuja Kashyap, who secured four marks more than the petitioner i.e. 425 in the written examination, was selected as she secured 55 marks in the interview i.e. a total of 488 marks which is more than the sixth respondent who, though awarded 60 marks in the interview, had secured 400 marks in the written examination i.e. a total of 460 marks. Ms. Gulistan Anjum, also belonging to the OBC category, was awarded 67 marks in the interview by the Interview Board, but was not selected, since she had secured only 383 marks in the written examination i.e. a total of 450 marks. The proceedings of the Interview Board show that the 6th respondent has not been picked and chosen for favourable treatment. It is not as if petitioner was awarded the 15 lowest marks in the interview, since one of the candidates Ms. Anjali, who also belongs to the OBC category, was awarded only 30 marks in the interview. We are satisfied, therefore, that the petitioner has not been extended hostile treatment by the Interview Board, and the process of selection does appear to be fair and reasonable.
II. ALLEGATIONS OF MALAFIDES REQUIRE PROOF OF A VERY HIGH ORDER:
19. The allegation of malafides made by the petitioner is not against any one of the six members of the Interview Board, but against the fifth respondent who was invited to be present, in the interview proceedings, merely as an observer. The Interview Board included a Judge of this High Court, besides experts in the field, and the Chairman and member of the Uttarakhand Public Service Commission. All of them together have awarded marks for each of the candidates interviewed by them. The procedure followed by the Uttarakhand Public Service Commission is not to disclose the marks secured by the interviewed candidates, in the written examination, to the Interview Board. It is evident, therefore, that the marks assigned by the Interview Board to each candidate, who was called for interview, is without knowledge of the marks secured by them in the main written examination. Since no malice is attributed to the Interview Board, nor has any contention been put forth regarding its constitution, or the manner in which the process of interview was conducted, it would be wholly inappropriate for us, in proceedings under Article 226 of the Constitution of India, to sit in judgment over the decision of the Interview Board regarding allotment of marks, to each candidate, in the interview. 16
20. Malice must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. (State of Bihar vs. P.P. Sharma12). The burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. (E.P. Royappa vs. State of T.N.13 and Smt. Swaran Lata vs. Union of India14). It is the last refuge of a losing litigant (Gulam Mustafa vs. State of Maharashtra15; Ajit Kumar Nag vs. GM(PJ), Indian Oil Corpn.16; and Dhampur Sugar (Kashipur) Ltd. vs. State of Uttaranchal17). Malafides, in the sense of improper motive, should be established only by direct evidence. If bad faith would vitiate the order, the same can be deduced as a reasonable and inescapable inference from proved facts. (Pratap Singh v. State of Punjab18). He who seeks to invalidate or nullify any act or order must establish the charge of bad faith.
While the indirect motive or purpose, or bad faith or personal ill-will, is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, though this may sometimes be done (Edgington vs. Fitzmaurice19).
21. Vague allegations of malafides are, however, not enough to dislodge the burden resting on the person who makes them. (Express Newspapers (P) Ltd. & others vs. Union of India & others20). There must be strong and convincing evidence to establish allegations of malafides specifically and definitely alleged in the petition. The presumption under law is in favour of the bonafides of the order unless contradicted by acceptable 17 material. (Chandra Prakash Singh vs. Purvanchal Gramin Bank21; First Land Acquisition Collector vs. Nirodhi Prakash Gangoli22). Allegations of malafides, when made, must inspire confidence in the Court and should be based on concrete material. Such allegations ought not to be entertained on the mere making of it, or on considerations borne out of conjectures or surmises. (State of U.P. vs. Gobardhan Lal23). There must be firm foundation of facts pleaded and established, and inference of malafides cannot be drawn on the basis of vague suggestions. (Rajendra Roy vs. Union of India and another24). Vague insinuations, in the affidavit filed in support of the Writ Petition filed before this Court, would not suffice to hold that an order is vitiated by malafides.
22. Though the burden of proving that there is an abuse of power lies on the person who challenges the order, such burden is not by way of proof to the hilt but such as will render the absence of bonafides reasonably probable. [Ratanlal Gupta vs. District Magistrate of Ganjam25; Brundaban Chandra Dhir Narendra vs. State of Orissa (Revenue Department)26]. It will then be incumbent on the authority to explain the circumstances under which the order has been made. The court will, in that event, scrutinize these circumstances and, if it is satisfied that the order was not made by the authorities in bonafide exercise of the power, it will quash the same. The standard of satisfaction will necessarily depend on the circumstances of each case. (Pannalal Binjraj vs. Union of India27). While exercising the power of judicial review, the High Court would not readily accept the charge of malus animus laid against the State and its 18 functionaries. The burden to prove the charge of malafides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides. The Court would resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings. (Jasbir Singh Chhabra vs. State of Punjab28).
23. In the affidavit filed in support of the writ petition, the petitioner alleged that the fourth respondent i.e. the Uttarakhand Public Service Commission had, under the undue influence of the fifth respondent (newly appointed member of the Uttarakhand Public Service Commission), favoured the sixth respondent, resulting in the petitioner being denied appointment to the said post. The petitioner's claim of being more meritorious than the sixth respondent is based on the fact that he was awarded 421 marks out of 850 in the main examination, whereas the sixth respondent was awarded 400 marks out of 850. The petitioner does not even allege that the sixth respondent was favoured in the main written examination. His complaint is only regarding 60 marks having been awarded to the sixth respondent by the Interview Board, while he was awarded only 31 marks; and this, he claims, was only because the fifth respondent had sought to favour the sixth respondent.
24. As noted hereinabove, the Interview Board consisted of six members which included a sitting Judge of this High Court. No allegations of malice are made, against any one of the six members of the Interview Board, in the 19 writ petition. Even with respect to the fifth respondent all that is alleged by the petitioner, in the affidavit filed in support of the writ petition, is that respondents 5 and 6 were near relatives. As to how they were related to each other is, however, not disclosed. In his counter affidavit, the fifth respondent has asserted that, except for the fact that both he and the sixth respondent have the same surname, the sixth respondent was not even a distant relative of his, neither was he his neighbor, nor was he even known to him; and the allegations made in this regard in the writ petition were absolutely false.
25. The changing versions of the petitioner, in support of the plea of malice of the fifth respondent, would belie such a claim. While the petitioner had initially alleged in the writ affidavit that the sixth respondent was a near relative of the fifth respondent, he changed his version in his rejoinder affidavit where he stated that the father of the sixth respondent and the brother of the fifth respondent were posted together at Block Campus, Naugaon, District Uttarkashi; and the father of the sixth respondent was staying with the family of the fifth respondent, when he was posted at Naugaon, District Uttarkashi, at their native village in Kanseru, Block Naugaon, District Uttarkashi. While the writ affidavit talked of the fifth and the sixth respondent being related to each other, the version of the petitioner changed to one of friendship between the father of the sixth respondent and the brother of the fifth respondent. This version again changed during the course of arguments, with Mr. Ajay Veer Pundir, learned counsel appearing on behalf of the petitioner, stating (without any 20 pleading in support thereof either in the writ petition or in the rejoinder affidavit) that the sister of the sixth respondent's father was married into the family of the fifth respondent. Allegations of malice must be founded on concrete material and not based on surmises and conjectures. The changing versions of the petitioner, from time to time, regarding the relationship between the fifth and the sixth respondent would not justify the selection process being set aside on the ground of malafides, more so as the fifth respondent was not even a member of the Interview Board. He was merely an observer, and could not have played any role in the allotment of marks to the interviewed candidates.
III. INVESTIGATION BY THE CBI CANNOT BE DIRECTED FOR THE MERE ASKING:
26. The prayer sought for in the writ petition, that an investigation be caused into the matter by the Central Bureau of Investigation, is far fetched and deserves rejection. The High Court has the power, under Article 226 of the Constitution of India, to direct investigation by the Central Bureau of Investigation (CBI), which power must be exercised sparingly. (Nirmal Singh Kahlon vs. State of Punjab29; Kashmeri Devi vs. Delhi Admn.30; Maniyeri Madhavan vs. Sub-inspector of Police31; and CBI vs. State of Rajasthan32). Despite the wide powers conferred on it, by Article 226 of the Constitution, the High Court must, while passing any order, bear in mind certain self-imposed limitations on the exercise of this constitutional power. The very plenitude of the power, under the said Article, requires great caution in its exercise. Although no inflexible guidelines can be laid down to decide whether or not the power of issuing a direction to the CBI, 21 to conduct investigation in a case, should be exercised or not, such an order is not to be passed as a matter of routine. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice, and in enforcing fundamental rights. (State of West Bengal vs. The Committee for Protection of Democratic Rights, West Bengal33).
27. Although the High Court has the power to order a CBI inquiry, that power should only be exercised if the High Court, after considering the material on record, comes to the conclusion that such material discloses, prima facie, a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered for the mere asking or merely because the party makes some allegation. (Sakiri Vasu vs. State of Uttar Pradesh34; State of Maharashtra vs. Farook Mohammed Kasim Mapkar35; Secy., Minor Irrigation & Rural Engg. Services, U.P. vs. Sahngoo Ram Arya36). Otherwise the CBI would be flooded with a large number of cases and, with its limited resources, may find it difficult to properly investigate even serious cases, and in the process lose its credibility and purpose with unsatisfactory investigations. (Romila Thapar and Ors. vs. Union of India (UOI) and Ors.37; and State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors.38). As we are satisfied that the allegations of malafides are vague, and are without factual foundation, we see no justification in directing an investigation by the Central Bureau of Investigation. 22 IV. CONCLUSION:
28. Viewed from any angle, we see no reason to interfere with the interview process conducted by the six member Interview Board, or with the appointment of the sixth respondent as the Civil Judge (Junior Division). The Writ petition as filed is wholly misconceived and is, accordingly, dismissed. However, in the circumstances, without costs.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.)
21.05.2019 21.05.2019
NISHANT