Rajasthan High Court - Jaipur
Sachin Kuma Rairan vs M N I T And Anr on 13 July, 2022
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9601/2015
Sachin Kuma Rairan son of Shri Devki Nandan Airan, aged about
23 years, R/o H.No.7, Sagar Enclave, Near Vidhaan Sabha
Nagar, Near Patrakaar Colony, Dholai, Mansarovar, Jaipur.
----Petitioner
Versus
1. Malaviya National Institute of Technology Through its Director,
MNIT Campus, JLN Marg, Jaipur.
2. Registrar, Malaviya National Institute of Technology, MNIT
Campus, JLN Marg, Jaipur.
----Respondents
For Petitioner(s) : Mr. Himanshu Jain
For Respondent(s) : Mr. Ravi Chirania
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
13/07/2022
This writ petition has been filed by the petitioner with the
following prayer:-
"It is, therefore, humbly prayed that
this Hon'ble Court be pleased to call for the
entire record relating to the case of the
Petitioners and after perusing the same
may be pleased to accept and allow this
writ petition:-
A. By appropriate writ, order or direction,
respondents may be directed to give
appointment to the petitioner on the post
of Junior Engineer (Electrical) in pursuance
to advertisement No.02\MNIT\ESTT\2014
(Annexure-1).
B. Any other appropriate order or direction
which the Hon'ble Court may deem fit and
proper in the facts and circumstances of
the case."
Brief facts of the case are that in pursuance to the
advertisement (Annx.1) inviting applications for appointment on
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various posts including the post of Junior Engineer (Electrical), the
petitioner applied for the post of Junior Engineer (Electrical). It is
not in dispute that the petitioner qualified first three stages i.e. (i)
Screening Test (ii) Subjective Test and (iii) Trade Test and he was
the single candidate in the interview held for the post of Junior
Engineer (Electrical). However, his candidature was rejected by
the respondents due to "Not Found Suitable."
Grievance of the petitioner by filing the present writ petition
is that the petitioner was the only candidate who after qualifying
the first three stages reached to the stage of interview and he
being the single candidate, he ought to have been considered for
appointment for the post of Junior Engineer (Electrical).
Counsel for the petitioner submits that the respondents in an
arbitrary manner have rejected the candidature of the petitioner
for appointment on the post of Junior Engineer (Electrical) despite
the fact that the petitioner has cleared all the first three stages
and the petitioner was the only candidate in the interview, as such
should have been considered for appointment on the post of
Junior Engineer (Electrical). Counsel further submits that while
taking decision of rejecting his candidature for appointment on the
post of Junior Engineer (Electrical), no reasonable justification has
been assigned by the respondents, which shows their arbitrary
exercise of power.
In support of his contention, counsel relied upon the
judgment passed by the Hon'ble Supreme Court in the matter of
Valsala Kumari Devi M. Vs. Director, Higher Secondary
Education & Ors. reported in (2007) 8 SCC 533 decided on
25.09.2007 where in para 11 it has been held as under:-
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"11) The expression "subject to seniority
and suitability" occurring in G.O. dated
27.6.1990 does not mean the comparative
assessment of suitability and it only means
the suitability for the particular post and
the suitability is related to the prescribed
qualification and requisite experience. In
view of the distinction between the
appointment by promotion from General
Education Subordinate Service and an
appointment to the 75% vacancies ear-
marked for direct recruitment, we are of
the view that the finding arrived at by the
Director, Higher Secondary School,
Thiruvananthapuram, Kerala that seniority
is not the criterion for 'appointment by
promotion to HSST' is erroneous and is not
in terms of the Government Orders
referred to above. Though in the order, it is
stated that the 5th respondent is more
suitable than the appellant, as rightly
pointed out by learned counsel appearing
for the appellant, it has not been shown or
indicated the reasons or grounds for
arriving such decision that the 5th
respondent was found more suitable than
the appellant for the post. We are also in
agreement with the contention that the
Director has mechanically accepted the
decision of the Selection Committee that
the 5th respondent is more suitable than
the appellant without reference to selection
for appointment by promotion to HSST
against 25% quota ear-marked for
qualified High School Assistants. We are of
the view that the Director has committed
an illegality in upholding the selection of
the 5th respondent for appointment to the
post of HSST. Further the 5th respondent
has been preferred to the appellant for the
reason that his main subject in B.A. is
History which is totally irrelevant for
promotion to HSST from among HSAs. In
G.O. dated 27.6.1990 the qualification
prescribed is a second class Master's
Degree in the concerned subject with B.Ed.
It is relevant to point out that the appellant
and the 5th respondent have obtained M.A.
Degree from Mysore University and the 5th
respondent took B.Ed with Social Studies.
The other reason given by the Selection
Committee for preferring 5th respondent is
that he has proficiency in English, Kannada
and Malayalam whereas the appellant has
proficiency in English and Malayalam. As
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rightly pointed out by learned counsel
appearing for the appellant, once the
requirement of the prescribed qualification
is satisfied, the selection must be made on
the basis of the seniority and suitability
and there is no scope for making
comparison of qualifications or comparative
assessment of suitability. The expression
'suitability' means that a person to be
appointed shall be legally eligible and
'eligible' should be taken to mean 'fit to be
chosen'."
Counsel further relied upon the judgment passed by the
Hon'ble Supreme Court in the matter of Secy. (Health) Deptt. of
Health and F.W. and Ors. vs. Anita Puri and Ors. reported in
(1996) 6 SCC 282 decided on 30.08.1996 where in para No.7 it
has been held as under:-
7. Admittedly, in the advertisement which
was published calling for applications from
the candidates for the posts of Dental
Officer it was clearly stipulated that the
minimum qualification for the post is
B.D.S. It was also stipulated that
preference should be given for higher
dental qualification. There is also no
dispute that M.D.S. is higher qualification
than the minimum qualification required for
the post and the Respondent No. 1 was
having that degree. The question then
arises is whether a person holding a M.D.S.
qualification is entitled to be selected and
appointed as of right by virtue of the
aforesaid advertisement conferring
preference for higher qualification? The
answer to the aforesaid question must be
in the negative. When an advertisement
stipulates a particular qualification as the
minimum qualification for the post and
further stipulates that preference should be
given for higher qualification, the only
meaning it conveys is that some additional
weightage has to be given to the higher
qualified candidates. But by no stretch of
imagination it can be construed to mean
that a higher qualified person automatically
is entitled to be selected and appointed.
In adjudging the suitability of a person for
the post, the expert body like Public
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Service Commission in the absence of any
statutory criteria has the discretion of
evolving its mode evaluation of merit and
selection of the candidate. The competence
and merit of a candidate is adjudged not
on the basis of the qualification he
possesses but also taking into account the
other necessary factors like career of the
candidate throughout his educational
curriculum, experience in any field in which
the selection is going to be held; his
general aptitude for the job to be
ascertained in course of interview, extra-
curriculum activities like sports and other
allied subjects, personality of the candidate
as assessed in the interview and all other
germane factors which the expert body
evolves for assessing the suitability of the
candidate for the post for which the
selection is going to be held.
In this view of the matter, the High Court
in our considered opinion was wholly in
error in holding that a M.D.S. qualified
person like Respondent No. 1 was entitled
to be selected and appointed when the
Government indicated in the advertisement
that higher qualification person would get
some preference. The said conclusion of
the High Court, therefore, is wholly
unsustainable and must be reversed.
Counsel further relied upon the judgment passed by the
Hon'ble Supreme Court in the matter of Praveen Singh vs. State
of Punjab and Ors. reported in AIR 2001 SC 152 decided on
10.11.2000 where in paras No.11 to 15 it has been held as
under:-
"11. A close look at the qualification as
prescribed and the information sheet,
however, in our view would depict
otherwise. The qualifications prescribes
that the candidates will be required to
qualify for the following written test at the
time of recruitment and the qualification
standard in the test has been fixed to be at
33% pass marks in each paper with 45%
however in the aggregate (emphasised)
and paragraph 4 of the Information sheet,
as above, in no uncertain term records that
no candidate shall be eligible to appear in
the viva voce test unless he obtains 33%
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marks in each paper and 45% marks in the
aggregate.
12. Reading the two requirements as
above, in our view question of having the
written test written off in the matter of
selection does not and cannot arise. Had it
been the intent of the Service Commission,
then and in that event question of there
being a totality of marks would not have
been included therein and together with
specified marks for viva voce tests, would
not have been there neither there would
have any requirement of qualifying pass
marks nor there would have any aggregate
marks as noticed above.
13. Further, in the event, the interview was
the sole criteria and the written test being
treated as qualifying test, the Public
Service Commission ought to have clearly
stated that upon completion of the written
elimination test, selection would be made
on the basis of the viva voce test only as is
available in the decision of Ashok & Ors. v.
State of Karnataka (1992) ILLJ87SC. Be it
noted that there is always a room for
suspicion for the common appointments if
the oral interview is taken up as the only
criteria. Of course, there are posts and
posts, where interviews can be a safe
method of appointment but to the post of a
Block Development Officer or a Panchayat
Officer wherein about 4500 people applied
for 40 posts, interview cannot be said to be
a satisfactory method of selection though
however it may be a part thereof-In the
factual score we have the advantage of
having the Rules prescribing the mode and
method of appointments and specific
marks are earmarked for written
examinations of various subjects together
with totality of marks for viva voce test. As
a matter of fact out of 450 marks only 50
marks have been allotted for interview by
the Service Commission itself - why these
400 marks allotted for a written
examination in four different subjects, if
interview was to be the guiding factor:
there has been however, no answer to the
same excepting that the Court ought not to
interfere in the matter of selection process
in the absence of mala fides true it is that
in the event the selection is tainted with
mala fides, it would be a plain exercise of
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judicial power to set right the wrong but is
it also realistic to assume that when the
Commission in clear and categorical
language recorded that 450 marks would
be the total marks for the examination and
out of which only 50 marks are earmarked
for viva voce test, the Commission desired
that these 50 marks would be relevant and
crucial and the other 400 marks would be
rendered totally, superfluous and of no
effect at all. The language used is rather
plain and is not capable of the
interpretation as is being presented before
us during the course of hearing and as has
been held by the High Court. Reliance on
50 marks only and thereby avoiding the
other 400 marks cannot in our view having
due regard to the language used, be said
to be reasonable or devoid of any
arbitrariness.
14. The action of the respondent
Commission thus is wholly unreasonable,
unfair and not in accordance with the
declared principles. Appointment procedure
is evident from the documentary evidence
disclosed in the proceedings and the
Commission ought to have taken note of
the written examination results as well. As
a matter of fact the High Court while
recording its acceptance to the method of
selection on the basis of the viva voce test
only, was pleased to observe as below:
However, we consider it absolutely
imperative to observe that the
Government should get the rules
examined and make proper amendment
so that its intention of making distinction
between qualifying test and viva voce
test does not remain obscure. We also
direct the PPSC to take extra precautions
while issuing any future advertisement
so that no inconsistency remains
between the rules and the contents of
the advertisement.
15. The High Court admittedly therefore
found inconsistency and obscurity in the
entire process and as a matter of fact, the
High Court has suggested incorporation of
proper amendments in the rules so as to
avoid confusion and obscurity. We are
however, constrained to note that having
come to a finding about the inconsistency
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and obscurity in the process, the High
Court thought it fit to decry the claim of
the writ petitioner being the appellant
herein on the plea of the employers right
but the documents through which the right
flows indicates a contra situation and as
such the action suffers from the vice of
arbitrariness and unreasonableness
warranting intervention of this Court. On
the wake of the above, the order of the
High Court stands set aside and quashed.
Consequently the appointments are also
set aside. The Public Service Commission is
directed to complete the process of
selections in terms of the existing rules so
that both the written and the viva voce test
be taken into consideration for the purpose
of effecting appointments. It is made clear
that no further advertisement or
examination shall take place but
reconsideration of the entire process be
effected upon due reliance on the written
as well as viva voce test. The process be
completed within a period of 3 months
from the date thereof. It is further made
clear that the appointments if any, already
made shall continue, but shall be subject to
the further results which may be declared
by the Public Service Commission in regard
to filling up of the posts of Block
Development and Panchayat Officers. The
appeal thus stands allowed. There will
however be no order as to costs."
Counsel further relied upon the judgment passed by the
Hon'ble Supreme Court in the matter of Shri Parvez Qadir Vs.
Union of India (UOI) reported in AIR 1975 SC 446 decided on
16.10.1974 where in para No.18 & 19 it has been held as under:-
18. It is also contended that regulation 5 of
the Initial Recruitment Regulations
regarding adjudging of the suitability is not
valid. The word 'suitability' itself is
correlated with the object of recruitment,
namely, that a person has to be considered
suitable for appointment to a superior
service which itself furnishes the norm that
he is considered suitable having regard to
his service in the State Forest Service.
having regard to his service in the State
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Forest Service. This in turn refers only to
the past records of the service in the State
as an officer of the State Forest Service.
The Special Selection Board ,under
regulation 5(2)(a) has to adjudge the
suitability of an officer from his service
records which form the basis of the
preparation of the list and the list so
prepared after consideration of the records
would reflect the overall assessment of the
officers of the State Forest Service.
19. The learned Attorney General has
referred us to the decision of this Court in
S. P. Jinadathappa v. R. P. Sharma and
Others [1962]2SCR22 of that decision the
question whether the words "suitable
tenant" were vague in the context in which
they were used, was considered. it was
there held that though the expression
"suitable" was not defined, it does not
require a definition, because any man of
experience would know who is a suitable
tenant. This decision has been accordingly
left to the Rent Controller. On the other
hand, the decision referred to by the
petitioner's learned Advocate in
Harakchand Ratanchand Benthia and Ors.
etc.v. Union of India and ors.
[1970]1SCR479 has no application, in that
the expression "suitability of the applicant"
for the grant of a licence does not provide
any objective standard or norm. Each case
has to be viewed in the context in which
the words "suitability" or "suitable" is used,
the object of the enactment and the
purpose sought to be achieved. In any
case the adjudging of suitability as has
been suggested by the method of viva-
voce, as held by this Court in Janki Prasad
Parimoo & Ors etc. etc. v. State of Jammu
& Kashmir & Ors. [1973]3SCR236 is
unsatisfactory. The criteria laid down in the
rules and regulations on this aspect do, in
our view, provide sufficient indication as to
the norms applicable for adjudging
suitability, namely, the past performance of
the officer as can be gleaned from his
confidential and other records if they exist
in respect of that officer."
Counsel further relied upon the judgment passed by the
Hon'ble Supreme Court in the matter of Suman Gupta and Ors.
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vs. State of J & K and Ors. reported in AIR 1983 SC 1235
decided on 19.09.1983 where in paras No.6 & 7 it has been held
as under:-
"6. For the purpose of these cases, we
shall proceed on the assumption that
national integration, which is undeniably in
itself a highly commendable and laudable
objective, will be effectively served by a
policy encouraging the admission of
candidates of one State to seats in the
Medical Colleges of another State. After
considering the matter carefully, we
confess, we are unable to subscribe to the
view that the selection of candidates for
that purpose must remain in the unlimited
discretion and the uncontrolled choice of
the State Government. We think it beyond
dispute that the exercise of all
administrative power vested in public
authority must be structured within a
system of controls informed by both
relevance and reason- relevance in relation
to the object which it seeks to serve, and
reason in regard to the manner in which it
attempts to do so. Wherever the exercise
of such power affects individual rights,
there can be no greater assurance
protecting its valid exercise than its
governance by F these twin tests. A stream
of case law radiating from the now well
known decision of this Court in Maneka
Gandhi v. Union of India
MANU/SC/0133/1978 : [1978]2SCR621
has laid down in clear terms that.-
7. Article 14 of the Constitution is violated
by powers and procedures which in
themselves result in unfairness and
arbitrariness. It must be remembered that
our entire constitutional system is founded
in the Rule of Law, and in any system so
designed it is impossible to conceive of
legitimate power which is arbitrary in
character and travels beyond the bounds of
reason.To contend that the choice of a
candidate selected on the basis of his
ability to project the culture and ethos of
his home State must necessarily be left to
unfettered discretion of executive authority
is to deny a fundamental principle of our
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constitutional life. We do not doubt that in
the realm of administrative power the
element of discretion may properly find
place, where the statute or the nature of
the power intends so. But there is a well
recognised distinction between an
administrative power to be exercised within
defined limits in the reasonable discretion
of designated authority and the vesting of
an absolute and uncontrolled power in such
authority. One is power controlled by law
countenanced by the Constitution, the
other falls outside the Constitution
altogether. Proceeding from there, it is
evident that if THE State Government
desires to advance the objective of national
integration it must adopt procedures which
are reasonable and are related to the
objective. In this Age of Reason, all law
must measure upto that standard, and
necessarily so also must all executive acts.
Viewed in this context, the claim of the
State Government in these cases that the
nature of the objective and the means
adopted to serve it entitle it legitimately to
vest in itself an absolute power in choosing
candidates for nomination cannot be
allowed to prevail. It is Incumbent on the
State Government to adopt a criterion or
restrict its power by reference to norms
which, while designed to achieve its object,
nevertheless confine the flow of that power
within constitutional limits. We are not
convinced that an adequate system of
standards cannot be, devised for that
purpose. Tested on the touchstone of our
constitutional values, the claim of the State
Government to the content of the power
assumed by it must, in our opinion, be
declared invalid."
Counsel appearing on behalf of the respondents vehemently
opposed the writ petition and submitted that it is no doubt true
that the petitioner was the only candidate in the interview but that
does not give any right to the petitioner of his selection. Counsel
further submitted that as per the terms & conditions of the
advertisement, the final selection shall only be done by the
Appointing Authority on the recommendation of the Selection
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Committee and once the selection committee did not find the
petitioner suitable for appointment on the post of Junior Engineer
(Electrical), the petitioner cannot claim appointment as a matter
of right.
In support of the contentions, counsel for the respondents
relied upon the provisions contained in Section 23 of NIT Statute 2007 & para No.12 thereof reads as under:-
"12.At the time of interview, the Selection Committee shall examine credentials of all candidates who have been called for the interview, interview the eligible candidates and recommend the appointment of the most suitable candidate to the competent authority for approval."
Counsel further submits that in view of the aforesaid provision, the candidature of the petitioner has been rightly rejected by the Selection Committee, and the petitioner has no case in his favour and the writ petition filed by the petitioner deserves to be dismissed.
He relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Dalpat Abasaheb Solunke and Ors. Vs. Dr. B.S. Mahajan and Ors. reported in 1990 (1) SCC 305, wherein it has been held as under:-
"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative 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 the 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 material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved (Downloaded on 25/07/2022 at 12:50:08 AM) (13 of 15) [CW-9601/2015] mala fides affecting the selection etc. it is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected that candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
The Hon'ble Supreme Court further has examined the powers of the selection committee in the case of Secretary (Health) Department of Health and F.W. & Anr. Vs. Dr. Anita Puri & Ors. reported in 1996 Supp.(s) SCR 361 wherein it has been held as under:-
"We are unable to accept this contention. This Court in the case of Ajay Hasia Etc. v. Khalid Majib Sehravardi and Others Etc., [1981] 1 S.C.C. 722, while considering the Case of selection, wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any consitutional infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the appellants arid the same necessarily has to be made only by allotting marks on different facets and them awarding marks in respect of each facet of a candidate and finaiiy evaluating his merit, it is too well settled that when a Selection is made by an expert body like public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, ihe courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers (Downloaded on 25/07/2022 at 12:50:08 AM) (14 of 15) [CW-9601/2015] suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation. Thus, considered we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was arbitrary or that the selection made by the Commission was in any way vitiated."
The Hon'ble Supreme Court has further examined the powers of the selection committee in the case of M.V. Thimmaiah and Ors. vs. Union Public Service Commission and Ors. reported in (2008)2 SCC 119 where in para 12 it has been held as under:-
"12. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion."
Counsel further submitted that the decision of the selection committed can only be interfered with if it suffers with mala fide, which is not the case of the petitioner.
Heard counsel for the parties and perused the record. This writ petition filed by the petitioner deserves to be dismissed for the reasons; firstly, although the decision of the Selection Committee has been challenged by the petitioner on the ground of arbitrariness and mala fides on the part of Selection Committee but no person by name has been impleaded as party respondent in this writ petition; secondly, the decision taken by the Selection Committee cannot be challenged except on the (Downloaded on 25/07/2022 at 12:50:08 AM) (15 of 15) [CW-9601/2015] ground of mala fide or violation of any statutory rules and in the present matter it is not the case of the petitioner that any statutory rule has been violated by the respondents in making selection; thirdly, in my considered view, no case is made out for interference by this Court under Article 226 of the Constitution of India in view of the judgment passed by the Hon'ble Supreme Court in the matter of M.V. Thimmaiah and Ors. (supra).
Hence, this writ petition stands dismissed.
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