Gauhati High Court
Kishore Kalita vs Brahmaputra Board And Ors. on 31 January, 2006
Equivalent citations: (2006)3GLR767
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. The appointments of respondent No(s). 7 and 8 as Assistant Engineers with the Brahmaputra Board (hereafter referred to as the Board) are under challenge. The contention of the petitioner in essence is that he having fared much better than the said respondents in the written examination, their selection only on the basis of the relatively higher marks obtained by them in the interview is unsustainable in law.
2. I have heard Mr. P.G. Baruah, senior advocate for the petitioner, Mr. D. Choudhury, advocate for the respondent No. 7 and Mr. D Baruah, learned Standing Counsel for the Board.
3. First the pleaded facts. The petitioner, an Engineering Graduate in the Civil discipline, in response to the advertisement published by the Board on 10.9.2003 for filling up two posts of Assistant Engineer, offered his candidature. He thereafter pursuant to the letter dated 6.2.2004 appeared in the written test and obtained 97 per cent marks. According to him, the respondent Nos. 7 and 8 could secure marks in the range of 50 per cent in the said examination. Thereafter about 40 candidates were selected for the oral interview. The petitioner being called appeared in the viva voce test on 25.11.2004. By the impugned communication dated 10.1.2005, the respondent Nos. 7 and 8 were, however, appointed to the advertised posts. The petitioner has contended that on the basis of his performance in the written examination, he had been placed at Sl. No. 1 and the respondent Nos. 7 and 8 at Sl. Nos. 14 and 18 respectively. Thus their appointments by ignoring his superior claim is per se arbitrary, discriminatory and unsustainable.
4. In its counter, the Board has pleaded that in response to the advertisement, 166 candidates applied out of which 130 appeared in the written examination/screening test. According to it, after receiving 166 applications, it was decided to conduct a qualifying test in order to reduce the number of candidates for interview. Accordingly, only those candidates why had secured 50% in the written test were treated to have qualified for the interview. It has been maintained that the petitioner, respondent Nos. 7 and 8 and other candidates securing above, the cut off percentage of marks in the screening test were called for the interview and based on the recommendation of the Departmental Selection Committee conducting the selection, the respondent Nos. 7 and 8 were appointed. The allegation of arbitrariness and discrimination has been denied.
5. The respondent No. 7 in his affidavit while generally endorsing the stand of the Board has pleaded that he having qualified in the written test, appeared in the interview and having been appointed on being recommended, he joined the advertised post of Assistant Engineer (Civil) accordingly.
6. Mr. Barua has assertively urged that as the petitioner has performed extremely well in the written examination, the action of the Board in ignoring the marks secured by him therein for the final selection is ex facie arbitrary, unfair and unjust. The candidates having been: made to appear in the written test, their assessment only on their performance in the interview was illogical and purported and not real. According to the learned senior counsel, the mode of selection based only on the evaluation of the candidates in the viva voce test is wholly impermissible. The Board, therefore, having applied a wrong standard in making the selection, the impugned appointments of the private respondents are liable to be set aside. In support of his submissions, Mr. Barua has, placed reliance on the following decisions. Ashok Kr. Yadav and Ors. v. State of Haryana and Ors. , Mohinder Sain Garg v. State of Punjab and Ors. , Ashok @ Somanna Gowda and Anr. v. State of Karnataka (, Srinivasa Rao v. J Veeraiah and Ors. , Praveen Singh v. State of Punjab and Ors. .
7. The learned Standing Counsel for the Board has argued per contra that it having been decided as a matter of procedure to call candidates securing 50 per cent and above marks in the written examination for the viva voce the selection of the candidates on the basis of their , performance in their interview before the departmental promotion committee, in absence of any other criteria prescribed, by the Ministry of Water Resource, 'Brahmaputra Board (Group B Post) Recruitment Regulations, 2000, (hereafter referred to as Regulation) governing such appointment cannot be faulted with in law. According to him, the number of advertised posts being two and the applications received 166, the Board decided to treat the performance in the written examination as the criteria only for screening the candidates securing 50 per cent marks and above for the interview. Candidates having been assessed by the Departmental Promotion Committee constituted under the Regulations and the appointments having been made on the basis of its recommendations, no interference of this Court in the exercise of its power of judicial review is warranted. The Committed being made up of responsible and high ranking officers of the Board and there being no allegation of mala fide, the petitioner has failed to make out any case to interfere with the appointments of the private respondents, he urged. Referring to the records of the selection, Mr. Barua argued that as the petitioner had been awarded low marks by all the members of the Departmental Promotion Committee there is no room for him to be aggrieved for not being recommended for appointment. According to Mr. Barua, as a written examination was conducted only for the purpose of screening the candidates for the interview, the performance therein had no bearing on the evaluation of their suitability in the interview.
8. Mr. Choudhury, while supporting the arguments of Mr. Barua has contended that as the respondent No. 7 on being appointed has joined the post and is serving the Board, any interference by this Court as sought for would result in serious prejudice to him. He relied on the decision of Jai Singh Dalai and Ors. v. State of Haryana and Anr. 1999 (2) Supp 6 SCC 600.
9. The competing arguments have been carefully weighed. Before adverting to the essential legal aspects it would be expedient to be familiarized with the records pertaining to the impugned selection to discern the course of the process culminating in the impugned appointments. The notification dated 10.9.2003 initiating the exercise amongst others sets out the eligibility conditions and procedure for applying. The manner of conducting the selection, however, was not referred to therein. The official records reveal that on receipt of applications, those were screened by a selection committee and only 132 candidates were called for the written test. After the said examination, on a consideration of the evaluation chart reflecting the performance of the candidates therein, it was decided that only those candidates who had secured 50 per cent marks and above be eligible to appear in the interview. Accordingly, those candidates were issued call letter for the interview and they accordingly appeared before the selection committee. After conducting the interview, the committee in its meeting held on 25.11.2004 on a consideration of "personality, general knowledge, past experience, computer knowledge, higher education and Engineering knowledge" selected 10 candidates in order of merit, the respondent No(s). 7 and 8 being placed at Sl. Nos. 1 and 2. The petitioner was not recommended. On a perusal of the evaluation chart, it appears that the respondents 7 and 8 scored 110 and 109 in the interview compared to 80 by the petitioner. The result sheet containing the marks in the written examination, however, discloses that the petitioner had scored 97 per cent compared to 57per cent and 58 per cent by the respondents 7 and 8. The marks scored by them in the interview are extracted in the table below.
SI. Name P.M. Scott, C.P. Singh S.P.S. Chauhan, I Islam, Total Grade
Superint- Director, CWC Director (Man) General
ending Spl. Invitee CWC Manager,
Engineer, I Brahma-
Hydrological putra
Observation Board.
Circle
(Examiner I) (Examiner II) (Examiner III) (Examirter IV)
1. Kishore 12 18 21 29 80
Kalita
2. Shyama)
Kr. Deka 24 25 29 32 110
3. Md. Hadi 19 28 32 30 109
Alam
10. The Regulations referred to above inter alia lay down the method of recruitment amongst others to the post of Assistant Engineer (Civil/ Mechanical) under the Board. Thereunder 50 per cent of such posts are to be filled up by promotion and the remaining 50 per cent by direct recruitment from amongst degree holders in Engineering from recognized institutions or equivalent in the required discipline, to be decided as per the requirement. The Regulations are, however, silent as to the procedure to be adopted to conduct the process for such recruitment, essentially leaving it to the appropriate authorities of the Board to decide the same. It is not the case of the parties either that their exist a set of guidelines in this regard. In other words, no scheme for assessment of a candidate on the basis of his overall performance in the written examination and the interview/viva voce is in force mandatorily requiring the Board to take note of the performance of a candidate in the written examination as well while assessing his suitability for appointment to the post of Assistant Engineer. Logically, therefore, the Board, in this matter, is at liberty to devise its own procedure for selection.
11. In this background the authorities cited at the bar may now be noticed.
12. In Ashok Kr. Yadav, supra, Rule 9(1) of the Punjab Civil Service (Executive Branch) Rules, 1930, prescribed a competitive examination for recruitment to posts in Haryana Civil Service (Executive) and other Allied Services. It inter alia provided that the examination would include compulsory and optional subjects and every candidate would have to take all the compulsory subjects but not more than three of the optional subjects. The ex-servicemen were, however, relieved of the requirement to appear in the optional subjects. As per the Regulation 1 in Appendix 1, five compulsory subjects carried in aggregate 400 marks and each optional subject was allotted 100 marks. The viva voce examination, which was compulsory, carried 200 marks. Consequently, for a general candidate, the written examination carried an aggregate of 700 marks with 200 marks for viva voce examination. Wh'ereas for ex-servicemen candidates, 400 marks were allotted for written examination and 200 a marks for viva voce examination. Regulation 3 provided that no candidate would be eligible to appear in the viva voce test unless he obtained 45 per cent marks in the aggregate of all the subjects including at least 33 per cent marks in each of the language papers in Hindi and Hindi Essay. The candidates who obtained high marks in the written examination but fared badly in the viva voce test and, thus, not selected, challenged the process inter alia on the ground that allocation of 200 marks for viva voce out of a total of 900 (700+200) for general candidates and of 600 marks for ex-servicemen was arbitrary and excessive. The High Court of Punjab and Haryana while entertaining the challenge set aside the selection. The Apex Court while upholding the contention of the writ petitioners held that where competitive examination consists of written examination followed by viva voce test, the marks allocated for the viva voce test should not exceed 12.2% of the total marks. The above determination notwithstanding the selection in the attending facts was not interfered with. The Apex Court on the aspect of the relevance of a viva voce test in evaluating a candidate and the scope-of judicial intervention observed as hereunder:
While a written examination assesses the candidate's knowledge and intellectual ability, a viva voce test seeks to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resource fullness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on the constitution of the interview board. There can be, therefore, be no doubt that the viva voce test performs a very useful function in assessing personnel characteristics and traits and in fact, test the man himself and is therefore regarded as an important tool along with the written examination.
There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must 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 of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter of determination by experts. The court does not possess the necessary equipment and it would not be right for the court to pronounce upon it, unless to use the words of Chinnappa Ready, J, in Lila Dhar case 'exaggerated weight has been given with proven or obvious oblique motives'.
13. The facts involved in Mohinder Sain Garg, supra, were that for appointment to the 47 posts of Excise and Tax Inspectors, an advertisement was published providing that there would be papers of English, Punjabi and General Knowledge of BA standard and those who would secure 33 per cent marks in each paper and 40 per cent marks in the aggregate would be called in the interview. Total marks in the written test were kept at 300 and for interview 100 marks were allotted. The petitioner though had appeared in the interview was not recommended for appointment. The process was challenged inter alia on the ground that prescription of 25 per cent marks out of the total marks for interview was arbitrary. The Apex Court after an exhaustive survey of its earlier decisions on the issue reiterated its view expressed in Ashok Kr. Yadav, supra. It ruled that though the viva voce test cannot be totally dispensed with but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more than 15% of the total marks in selection of candidates fresh from college/school for public employment by direct recruitment where rules provide for composite process of selection, namely, written examination and interview. However, noticing that the selected candidates had already joined their posts, the process was not interfered with.
14. In Ashok @ Somanna Gowda and Anr., supra, under the Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973, marks allotted for the qualifying examination were 100 and 50 for interview. The marks earmarked for interview, therefore, amounted to 33.3% of the total marks. The appellants though had secured higher marks in the qualifying examination were not selected in view of their comparatively poor performance in the interview. Their assailment founded on excessive percentage of marks for interview in violation of the dictum laid down by the Apex Court in Ashok Kr. Yadav, supra, and Mohinder Sain Garg, supra, though upheld, the selection was left un-interfered as appointments had already been made on the basis thereof.
15. The facts in YSrinivasa Rao v. J. Veeraiah and Ors. supra, related to appointments of a dealer of a fair price shop for which an advertisement was issued inviting applications from eligible candidates indicating that preference would be given to those who were experienced in business and also to unemployed educated persons, ladies and handicapped persons. The respondent No. 1 was selected on the basis of a brief of interview. The appellant though successfully challenged the selection, before the Collector, the finding was overturned by the High Court. The selection of the respondent No. 1 was sought to be sustained by the State on the ground that in terms of the Government policy preference was to be extended to less educated persons and no weightage was allowable to academic qualifications. The norms to the contrary mentioned in the advertisement were said to have been incorrectly recorded. The Apex Court while disapproving the policy as absurd and irrational observed that interview as the sole criteria in the facts of the case, in absence of guidelines left the matter to the whims of the individual officer holding the interview. The policy was, therefore, held to be unconstitutional and the settlement in favour of the respondent No. 1 was quashed.
16. In Praveen Singh, supra, the Punjab Public Service Commission in June 1993, issued an advertisement for 26 Block Development and Panchayat Officers but before the process could be finalized the vacancies were filled up by ad hoc appointments. On being assailed, the ad hoc appointments were quashed by the High Court and the Apex Court while upholding the said order directed the Commission to complete the process. A corrigendum was thereafter issued against which candidates in large numbers appeared in the written test of which 130 were selected to appear in viva voce test. The petitioners whose name did not appear in the final merit list impugned the process before the High Court and being unsuccessful took the challenge to the Apex Court, the principal contention being non-consideration of the marks secured by them in the written examination while determining the overall merit of the candidates for final selection. Rule 5 of the Punjab Development and Panchayat Class II (Service) Rules which governed the process prescribed the qualifications essential to be appointed to the Service. Appendix "B" of the said Rules inter alia provided that the candidates would be required to qualify in written test carrying 350 marks. 100 marks were set apart for the viva voce. The qualifying standard in the test was also prescribed. The information sheet circulated by the Service Commission disclosed that there would be a written test in four papers carrying 350 marks followed by a viva voce test for which 50 marks had been allotted. The grievance expressed before the Apex Court was that in the face of an existing dual requirement of a written as well as viva voce test, the marks obtained in both ought to have been counted to determine the overall merit of a candidate and that the selection solely based on the performance in the viva voce examination was patently illegal and arbitrary.
17. The Apex Court, on a consideration of the above, ruled that having regard to the requirement of the written as well as viva voce test, the former could not be written off in the matter of selection. The action of the respondent-Commission was thus held to be unreasonable and unfair and the impugned appointments were set aside with a direction to complete the process in terms of the existing rules so that both the written and viva voce tests be taken into consideration for the purpose of effecting appointments.
18. The decision in Jai Singh Dalai and Ors. supra, which deals principally with the nature of the right of a selected candidate for appointment being not of any decisive pertinence, is not dilated upon.
19. The common feature discernible in the reported decisions is a statutorily prescribed scheme envisaging both written as well as viva voce tests with allotted marks therefor for selection of a candidate. The Rules prescribed two modes of appraising the candidate, i.e., by written and viva voce tests, the apportionment of the marks being an index of the weightage thereof on the process of evaluation. Written and viva voce tests in those cases thus formed a composite paradigm of the exercise both being integral parts thereof. Understandably in the teeth of such a legislative framework, performance of a candidate in any of the two tests could not be permissibly divorced from the exercise for judging the overall merit of the candidates. Omission to take note of the performance of a candidate in the written examination for that matter and to judge his suitability only on the basis of the marks secured in the viva voce test would not only be incompatible with the legislative plan but also ex-facie arbitrary, whimsical and illogical. The same analogy would apply also where identical guidelines are prescribed to conduct a selection process.
20. The facts in the case, in hand, however, are distinguishable either the Regulations mandate any well defined procedure or mode of selection for direct recruitment nor does it require that the assessment of a candidate has to be on the basis of both written as well as viva voce tests. The authorities of the Board as alluded herein above at the very inception of the process decided to treat the written examination to be a screening measure to select candidates securing 50 per cent marks and above to be called for the interview. The selection committee comprised of high-ranking officials of the Board and the short listed candidates were duly interviewed. The situation is unlike as in the reported decisions and in particular in Y Srinivasa Rao where the interview was conducted by a single individual and the selection was made in contravention of the advertised norms. The evaluation chart available in the official records clearly indicates that each candidate was assessed separately by the Board and his ranking was based on the aggregate of marks awarded to by them. Noticeably, no allegation of mala fide or bias has been made against any of the members of the selection committee. Neither the assessment of the committee has been § questioned to be either incorrect or wanting in objectivity. On a perusal of the records, no perversity or arbitrariness as such is discernible to condemn the selection process to be illegal, discriminatory, unconstitutional, null and void. Having regard to the lay out of the prevailing facts and the materials on record, no illegality, irregularity or irrationality is perceptible in the decision making process. The observations in the reported decisions against viva voce to be the sole criterion to judge the suitability of a candidate would have to be construed in the background of facts therein and do not have any decisive bearing in the present case.
21. The Apex Court in State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. 1989 Supp. (1) SCC 574 ruled that the mode of recruitment and the category from which recruitment to a service should be made are matters within the exclusive domain of the executive and it is not for judicial bodies to sit in judgment over the executive's decision in these matters.
22. In Lila Dhar v. State of Rajasthan , the Apex Court observed that the weight to be given to the interview test should depend on the requirement of the service, to which the recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors.
23. The constricted scope of judicial interference with the decision of a selection committee was reiterated in Dr. Krushna Ch. Sahu v. State of Orissa , limiting it to illegality or material irregularity in the constitution of the committee or in its procedure vitiating the selection or proved mala fides affecting the selection. .
24. The contours of judicial review of administrative decision have been succinctly summed up by the Apex Court in Haryana Financial Corporation v. Jagdamba Oil Mills in the following words:
The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an Appellate Authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred: (as per Lord Diplock in Secy. Of State for Education and Science v. Metropolitan Borough Council of Tameside, All ER at p. 695f). The court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene.
25. Having regard to the judicially evolved parameters of judicial review, the pleas raised on behalf of the petitioner do not commend for acceptance to warrant interference with the selection process and the appointments of the private respondents.
26. In the wake of the above, the petition being without any merit is hereby dismissed. No costs.