Calcutta High Court (Appellete Side)
Prolay Naskar vs The State Of West Bengal & Ors on 11 October, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shekhar B. Saraf
W.P. No. 3967(W) of 2018
Prolay Naskar
Versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Biswarup Biswas
Ms. Moumita Mondal
For the Respondent : Mr. Partha Sarathi Sengupta,
Senior Advocate
Ms. Atasi Ghosh
........For the Respondent Nos. 4 & 5
Mr. Supriyo Chattopadhyay
Ms. Iti Dutta
......For the State
Heard on : 27.06.2018, 12.07.2018, 30.07.2018, 06.08.2018, 14.08.2018 and 23.08.2018
Judgment on: October 11, 2018
Shekhar B. Saraf, J.:
1. The present writ petition is filed by the petitioner assailing the impugned panel dated October 16, 2017, prepared by the Selection Committee and approved by the Managing Committee of Raghabpur St. Paul's High School (hereinafter referred to as "concerned school"), Post Office - Nepal Runj, District - 24 Parganas (South), for the post of Assistant Teacher in English subject (Pass) with B. Ed. (hereinafter called the said post).
2. The chronological facts leading to this writ petition are as follows:
a) A post of teacher for English subject (pass category) with B. Ed.
had fallen vacant in Raghabpur St. Paul's High School. For the purpose of filling up the said post the Managing Committee of the said school invited applications by advertisement published in the "Asian Age" and "Ajjkal" newspaper on August 20, 2017. The aspiring candidates having requisite qualifications applied for the said post. 16 persons were present in the interview including the petitioner which was scheduled to be held on October 16, 2017. The Selection Committee prepared the panel on the basis of marks for educational qualification, class demonstration and interview/viva-voce. The Selection Committee fixed 35 marks for educational qualification, 15 marks for class demonstration and 10 marks for viva-voce out of 60 marks.
b) The members of the Selection Committee after conducting the class demonstration and viva voce individually awarded marks for each of the above components and upon aggregation, the final panel was chosen by them and the same was handed over to the Managing Committee of the said school. The Managing Committee duly approved the said panel.
c) The panel figured in the following manner:
Position Names Marks obtained
1st position Mr. Raj Kumar Mistry Out of 60 obtained 45.4
marks
2nd position Miss Preeti Arpona Gomes Out of 60 obtained 44.2
marks
3rd position Mr. Ananda Paul Out of 60 obtained 42.5
marks
d) The Managing Committee of the said school issued appointment
letter in favour of the 1st empanelled candidate namely Mr. Raj Kumar Mistry, the private respondent No. 6 herein. The petitioner has challenged the said selection process and the impugned panel dated October 16, 2017 in the present writ petition.
3. Mr. Biswarup Biswas, Advocate appearing on behalf of the writ petitioner submitted that the petitioner appeared for the interview for the post of Assistant Teacher of English in the concerned school on 16th October 2017 and in spite of receiving the highest marks in the academic qualifications was not selected. His main argument was that the concerned school had allotted more marks for the viva voce in complete disregard to the ratio of the Supreme Court judgment in Ashok Kumar Yadav -v- State of Haryana & Ors. reported in 1985 (4) SCC 417 [Coram: Y.V. Chandrachud, C.J. and P.N. Bhagwati, Amarendra Nath Sen and V. Balakrishna Eradi, JJ.] His arguments centred around the following issues:
a) The viva-voce component being more than 12.2% the entire selection process was vitiated and was malafide and arbitrary as per the ratio of Ashok Kumar Yadav (supra);
b) The larger bench judgment of Ashok Kumar Yadav (supra) prevails over the subsequent judgments of smaller benches of the Supreme Court;
c) Unsuccessful candidates have a right to approach the court to challenge the selection procedure;
d) Minority institutions are subject to writ jurisdiction within the framework of Article 30 of the Constitution of India.
4. With respect to the first argument, petitioner argued that the Managing Committee of the said school issued appointment letter in favour of the 1st empanelled candidate, Mr. Raj Kumar Mistry, the private respondent no. 6 despite the fact that he had obtained lesser marks in academic qualifications than the petitioner but had obtained the 1st position in the said panel by virtue of obtaining unduly high marks in the class demonstration and viva-voce.
5. The petitioners argued that the Selection Committee had not followed the guidelines framed by the Supreme Court judgment in Ashok Kumar Yadav (supra) that held that the marks for interview cannot be more than 12.2% of total marks of the selection process. Petitioner further relied on the judgment of Ashok Kumar Yadav (supra) wherein it was stated that the percentage allotted to viva-voce and written examination strike a proper balance at 12.2% and in the future also, the marks allocated for the viva-voce should not exceed 12.2% in case of candidates belonging to the general category and 25% in case of ex- service officers. He also relied on the case of Ajay Hasia and Others -v- Khalid Mujib Sehravardi and Others reported in AIR 1981 SC 487 [Coram: Y.V. Chandrachud, C.J. and P.N. Bhagwati, V.R. Krishna Iyer, S. Murtaza Fazal Ali and A.D. Koshal, JJ.] that also emphasized on the point that the allotment of marks for viva-voce cannot be more than 15% of total marks of the selection process. Mr. Biswas argued that allocating 25 marks out of 60, that is, allocating 42% of total number of marks for demonstration and viva-voce in the selection process is not only arbitrary but also violative of the equality granted under the Constitution. He further submitted that the interview process can be arbitrary and with the level of corruption and nepotism that is increasing in the country might lead to undeserving candidates getting selected over the deserving ones. He further relied on the Supreme Court judgment in Minor A. Peeriakaruppan -v- State of Tamil Nadu and Ors. reported in AIR 1971 SC 2303 [Coram: J.C. Shah, K.S. Hedge and A.N. Grover, JJ.] wherein when the marks allocated for interview was 75 out of 275 marks in total, the Supreme Court held that the marks for interview were on a higher side. Further, he relied on the case of Nishi Maghu (Miss) and Ors. -v- State of J & K and Ors. reported in AIR 1980 SC 1975 [Coram: A.C. Gupta, S. Murtaza Fazal Ali and P.S. Kailasam, JJ.] wherein it was stated that "reserving 50 marks for interview out of a total of 150 seems excessive, especially when the time spent was not more than 4 minutes per candidate." Hence, counsel submitted that allocating 42% of total marks for class demonstration and viva-voce clearly seems to be unreasonable in the case at hand. He further submitted that the top 3 candidates had lesser academic marks than the petitioner but due to the obscenely high marks awarded for the demonstration and viva-voce had emerged as the top 3 candidates. The petitioner also relied on the Calcutta High Court judgment in Abhijit Dey -v- Learned West Bengal Administrative Tribunal and others reported in 2006 (4) CHN (Cal) 476 [Coram: Bhaskar Bhattacharya and Jyotirmay Bhattacharya, JJ.] to support his submissions that Ashok Kumar Yadav (supra) is the law of the land.
6. He further relied on the judgment of the Apex Court in P. Mohanan Pillai -v- State of Kerala and Ors. reported in (2007) 9 SCC 497 [Coram: S.B. Sinha and Markandey Katju, JJ.] that set aside the selection on the ground of awarding 50% marks for oral interview and held the same to be amounting to favouritism. Further, he relied on the case of Inder Prakash Gupta -v- State of J & K and Ors. reported in (2004) 6 SCC 786 [Coram: V.N. Khare, C.J and S.B. Sinha and S.H. Kapadia, JJ.], to establish that there is no universal application of rules which could be laid down to establish allocation of marks for viva-voce test. However, when such an allocation is made with an intention capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India.
7. To address the issue of Doctrine of Precedents and to distinguish the judgments passed subsequent to the judgment of Ashok Kumar Yadav (supra), on the matter of weightage given to selection procedure by smaller benches, the petitioners relied on The State of U.P. -v- Ram Chandra Trivedi reported in 1976 (4) SCC 52 [Coram: H.R. Khanna, R.S. Sarkaria and Jaswant Singh, JJ.] to emphasize that if there are conflicting decisions in respect of the two benches of the Hon'ble Supreme Court, then the larger bench of the Hon'ble Supreme Court would be followed by the High Court. Mr. Biswas submitted that the High Court cannot disregard any views expressed by the larger benches of the Supreme Court Court in preference over smaller benches that have come at a later point in time. Mr. Biswas pointed out that this principle was extracted by the Supreme Court from the case of Union of India and Another -v- K.S. Subramaniam reported in AIR 1976 SC 2433 [Coram: A. N. Ray, C.J., M. H. Beg and Jaswant Singh, JJ.]
8. He further submitted that in Official Liquidator -v- Dayanand & Ors.
reported in 2008 (10) SCC 11 [Coram: B.N. Agrawal, H.S. Bedi and G.S. Singhvi, JJ.], the Supreme Court established that when the smaller bench of Supreme Court differs with the view of the Larger bench, the views of the Smaller bench would be treated as obiter dicta and have no value as a precedent. He further relied on the Supreme Court judgments in State of Bihar -v- Kalika Kuer alias Kalika Singh and Others reported in (2003) 5 SCC 448 [Coram: R.C. Lahoti and Brijesh Kumar, JJ.], Pradip Chandra Parija & Ors. -v- Pramod Chandra Patnaik & Ors. reported in 2002(1) SCC (1) [Coram: S.P. Bharucha, C.J. and Syed Shah Mohammed Quadri, Umesh C. Banerjee, S.N. Variava and Shivaraj V. Patil, JJ.], National Insurance Company Limited -v- Pranay Sethi & Ors. reported in AIR 2017 SC 5157 [Coram: Dipak Misra, C.J.I., A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud, Ashok Bhushan, JJ.] to buttress his arguments on the Doctrine of Precedents.
9. Moving on to the third argument, wherein the issue is whether an unsuccessful candidate can challenge the decision of the Selection committee after participating in the Selection procedure, the petitioner relied on the judgment of this Hon'ble Court in Jayasri Ghosh -v- The State of West Bengal and Ors. reported in 2014 (1) CLJ (Cal) 17 [Coram: Dipankar Datta, J.], that held that that even an unsuccessful candidate can challenge the decision of the Selection Committee on the limited ground such as illegality or patent irregularity in the procedure of selection or proven malafide which affects the selection itself. Further reliance was placed on Dalpat Abasaheb Solunke -v- B.S. Mahajan reported in (1990) 1 SCC 305 [Coram: Kuldip Singh, P.B. Sawant and K. Ramaswamy, JJ.] to emphasize on the point that Selection Committee decides the merits of the candidate and this decision can only be interfered with on limited grounds such as illegality or patent material irregularity in the constitution of the Committee. He further relied on the judgment of Sukumar Kalsar -v- Rajsekhar Mondal reported in 2015 (5) CHN (Cal) 605 [Coram: Jyotirmay Bhattacharya & Ishan Chandra Das, JJ.] to prove that if there is malafide in the selection process the unsuccessful candidate can maintain the writ petition turning down the objection of the school. He further relied on the case of V. Arumgam & Ors. -v- R. Kalaiarasan & Ors. reported in 2010 (8) MLJ 142 [Coram: Elipe Dharma Rao and K.K. Sasidharan, JJ.] to show that when the persons less qualified and less experienced get more marks in interview, then a presumption may be raised that the same would be malafide and arbitrary.
10. On the final issue, the petitioners emphasized on the judgment in Ivy C. Da Conceicao -v- State of Goa & Others reported in 2017 (3) SCC 619 [Coram: Adarsh Kumar Goel and Uday U. Lalit, JJ.] that stated that in case of appointment to the minority institution, more transparency and fairness is to be adopted. Just because it is a minority institute and has the autonomy to decide on rules, it doesn't give them a right to treat any individual unfairly. While a minority institute is free to select individuals according to their own rules, but the appointment has to be made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure is to be tested under Article 226 of the Constitution.
11. Per contra, Mr. Partha Sengupta, Senior Advocate, appearing on behalf of the respondent school, relied on several Supreme Court judgements to support his arguments that Ashok Kumar Yadav (supra) never laid down a ratio that the marks allotted for interview cannot be more than 12.2%. In fact, he submitted that Ashok Kumar case (supra) relied on the judgment of Lila Dhar -v- State of Rajasthan reported in (1981) 4 SCC 159 [Coram: O. Chinnappa Reddy, A. P. Sen and Baharul Islam, JJ.] and stated at paragraph 25 of the judgment - "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." Mr. Sengupta thereafter placed reliance on Supreme Court judgements of Jasvinder Singh -v- State of J & K & Ors. reported in (2003) 2 SCC 132 [Coram: Doraiswamy Raju and Shivaraj V. Patil, JJ.], Anzar Ahmed & Ors. -v- State of Bihar & Ors. reported in (1994) 1 SCC 150 [Coram: Kuldip Singh and S.C. Agrawal, JJ.], Union of India -v- N. Chandrashekhar & Ors. reported in (1998) 3 SCC 694 [Coram: K. Venkataswami and A.P. Misra, JJ.], Kiran Gupta & Ors. -v- State of UP & Ors. reported in (2000) 7 SCC 719 [Coram: Syed Shah Mohammed Quadri and S.N. Phukan, JJ.], Manish Kumar Shahi -v- State of Bihar reported in (2010) 12 SCC 576 [Coram: G.S. Singhvi and C.K. Prasad, JJ.], to elaborate that the weightage of the marks for interview/viva voce varies from service to service depending upon various factors like the requirement of service, minimum qualification prescribed, age group from which 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. He submitted that the quantum of marks is to be determined by the experts and the Supreme Court has categorically held that the court does not have the necessary equipment and it will not be right for them to pronounce upon it. He further submitted that the abovementioned judgements all dealt with and relied upon Ashok Kumar Yadav (supra) and upon examination of the same elucidated the principles that a right balance is required to be maintained and no hard and fast rule is applicable in all cases. In fact, he submitted that these judgments all relied on Ashok Kumar Yadav (supra) and held that the 12.2% was determined in the facts of that case and the same can vary depending on each case. In fact, it has been held that in cases where there is no written examination, there is no question of weightage of percentage for the interview. He submitted that in the present case, the Rules were clear and prescribed 35 marks for the academic qualification and 25 marks for the class demonstration and viva voce. Therefore, there was no question of any illegality whatsoever.
12. On the issue of Doctrine of Precedents, Mr. Sengupta firstly stated that there is no conflict whatsoever between Ashok Kumar Yadav (supra) and the subsequent judgements of the Supreme Court as they all follow the same principles. However, for the sake of argument, in the event there is a conflict, he argued that if the views expressed by a larger bench of the Supreme Court have been explained by a subsequent smaller bench of the Supreme Court, then the later smaller bench has to be followed by the High Court. He relied on several High Court judgements in Nizamuddin Suleman -v- New Shorrock Spg. and Wvg. Mills Co. Ltd., Nadiad and Ors. reported in 1979(39)FLR 287; (1979)20 GLR 290; (1979)IILLJ 36 GUJ [Coram: B.J. Divan, C.J., D.A. Desai and S.B. Majumdar, JJ.], Subhash Chander Kamlesh Kumar -v- State of Punjab reported in AIR 1990 P&H 259 [Coram: I.S. Tiwana A.L. Bahri and A.P. Ckowdhri, JJ.], Commissioner of Income Tax, West Bengal-III -v- M/s Oberoi Hotels (P) Ltd. reported in (2011) 4 CHN 552 [Coram: Bhaskar Bhattacharya and Sambuddha Chakrabarti, JJ.] and the Supreme Court judgement of M. Natarajan -v- State by Inspector of Police, SPE, CBI, ACB, Chennai reported in (2008) 8 SCC 413 [Coram: P.P. Naolekar and V.S. Sirpurkar, JJ.], to emphasize his submissions that as long as the decision of subsequent smaller bench is not held to be per incuriam by a larger bench decision of Supreme Court, all High Courts are bound by the explanation of the later smaller bench given to the decision of the larger bench. Mr. Sengupta submitted that when there is a conflict between a larger bench decision and a smaller bench decision, then the larger bench decision will prevail only in cases when the smaller bench decisions are passed in ignorance of the larger bench decision. He reiterated that in the case at hand, there is no conflict between Ashok Kumar Yadav (supra) and the above mentioned subsequent decisions as all the subsequent decisions after considering Ashok Kumar Yadav (supra) followed the ratio laid down therein that there cannot be any hard and fast rule for marks to be allocated for interview/viva voce.
13. On the next issue of the challenge being thrown by an unsuccessful candidate by way of a writ petition, Mr. Sengupta placed reliance on the Calcutta High Court judgement in Lalin Kumar Mahato -v- State of WB & Ors. reported in (1998) 2 Cal LJ 365 [Coram: Nirendra Krishna Mitra, J.], and on the Supreme Court judgment in State of Punjab and Ors. -v- Constable Subhash Chander and Ors. reported in 1994 Supp (1) SCC 465 [Coram: L.M. Sharma, C.J. and Yogeshwar Dayal and S.P. Bharucha, JJ.] to show that the petitioner has no legal right to the said post as he was not even in the top 3 scoring candidates. He thereafter placed reliance on the Supreme Court judgement in Dhananjay Malik and Ors. -v- State of Uttaranchal & Ors. reported in (2008) 4 SCC 171 [Coram: H.K. Sema and Markandey Katju, JJ.] that held that an unsuccessful candidate is estopped from challenging the selection process after participating in it due to process of estoppel, waiver and acquiescence, unless the entire selection process is vitiated by gross illegality or patent material irregularity in constitution of the Selection Committee or its procedure.
14. Mr. Sengupta further submitted that no material has been brought forward by the petitioner to show that in the present case there is any gross violation, malafide, illegality or any arbitrariness, and hence, the petitioner is estopped from challenging the selection procedure after having participated in the same. Mr. Sengupta submitted that the petitioner has simpliciter alleged that there was malafide intention by members of the selection committee in favour of Raj Kumar Mistry without providing a shred of proof with regard to the same. He submitted that persons against whom these allegations are made are not even impleaded as parties to proceedings to enable them to answer the charge. There has been no cogent evidence so as to show nexus between the members of the Selection Committee and reason as to why members of Selection Committee would favour or have bias towards Raj Kumar Mistry. By placing reliance on the cases of Dalpat Abasaheb Solunke (supra), State of Bihar -v- P. P. Sharma and Anr. reported in 1992 Supp (1) SCC 222 [Coram: Kuldip Singh and K. Ramaswamy, JJ.], Ratnagiri Gas & Power Pvt. Ltd. -v- RDS Project Ltd. And Ors. reported in (2013) 1 SCC 524 [Coram: T.S. Thakur and Gyan Sudha Misra, JJ.], Jasvinder Singh (supra) he submitted that mere general statements of malafide and/or malice are not sufficient to indicate ill- will and that the burden of proving the same is on the person who alleges it.
15. On the final issue of a minority institution being subject to writ jurisdiction, it was argued that the respondent school was neither subject to the West Bengal School Service Commission Act, 1997 (hereinafter referred to as "WBSSC Act") nor the Rules framed thereunder. He submitted that as per Sec. 15 of the WBSSC Act, the concerned school being a Christian minority institution was exempted from the applicability of the Act and Rules framed thereunder. The notification dated 3rd February, 2016 (hereinafter referred to as "Commission Rules"), applicable to minority institutions states that the applicability of West Bengal Rules is only to the extent of minimum academic qualifications, professional qualification, age limit and citizenship as laid down in relevant recruitment rules framed under WBSSC Act. Clause 5 of the Commission Rules gives minority schools the autonomy to have their own selection procedure subject to the condition that the norms of Selection committee are formed by the governing body of the school and the same is communicated to the District Inspector of School three months prior to the date of interview. In the present case, Respondent school in compliance to Clause 5 communicated the recruitment procedure and rules to District Inspector of School on June 19, 2017 and to West Bengal Commission of School, West Bengal via letter of June 12, 2017 (which was 3 months prior to interview held on October 16, 2017). Counsel submitted that the Petitioner has not challenged the recruitment rules of the concerned school in his petition and hence he is barred from questioning the validity and legality of the recruitment rules during arguments.
16. I have heard counsels appearing on behalf of both the parties and have perused the materials on records.
17. The matter at hand essentially deals with four (4) key legal issues that are as follows:
a) Whether the viva-voce component being more than 12.2% the entire selection process was vitiated and was malafide and arbitrary as per the ratio of Ashok Kumar Yadav (supra)?
b) Whether the larger bench judgment of Ashok Kumar Yadav (supra) prevails over the subsequent judgments of smaller benches of the Supreme Court?
c) Whether the petitioner being an unsuccessful candidate, in the present facts and circumstances, has a right to approach the writ court to challenge the selection procedure?
d) Whether in the facts and circumstances of the case, the present minority institution school is subject to writ jurisdiction within the framework of Article 30 of the Constitution of India?
18. On the first issue, I would like to examine in detail some of the important judgements on the issue of weightage of marks for interview/viva voce and bring the same on record in this judgement. One shall be able to then trace the development of the law on this issue with clarity of mind and thought. The words of O. Chinnappa Reddy, J. in Lila Dhar (supra) hold the field till date :
"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 interview-test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu [(1971) 1 SCC 38 : (1971) 2 SCR 430] , Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722; 1981 SCC (L&S) 258 : AIR 1981 SC 487] 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 Public Service Commission.
9. ....... 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 Article 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 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."
19. Following Lila Dhar (supra), the Supreme Court in Ashok Kumar Yadav (supra) held as follows:
"25. Glenn Stahl has pointed out in his book on Public Personnel Administration that the viva voce test does suffer from certain disadvantages such as the difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test and public suspicion of the oral test as a channel for the exertion of political influence and, as pointed out by this Court in Ajay Hasia case[(1981) 1 SCC 722 :
1981 SCC (L&S) 258 : AIR 1981 SC 487 : (1981) 2 SCR 79] , also of other corrupt, nepotistic or extraneous considerations, but despite these acknowledged disadvantages, the viva voce test has been used increasingly in the public personnel testing and has become an important instrument whenever tests of personal attributes are considered essential. Glenn Stahl proceeds to add that "no satisfactory written tests have yet been devised for measuring such personnel characteristics as initiative, ingenuity and ability to elicit cooperation, many of which are of prime importance. When properly employed, the oral test today deserves a place in the battery used by the technical examiner". There can therefore be no doubt that the viva voce test performs a very useful function in assessing personal characteristics and traits and in fact, tests the man himself and is therefore regarded as an important tool along with the written examination. Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. "In the case of admission to a college for instance", as observed by Chinnappa Reddy, J., in Lila Dhar case [(1981) 4 SCC 159 : 1981 SCC (L&S) 588 : AIR 1981 SC 1777 : (1982) 1 SCR 320] , "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 perforce to be given to performance in the written examination" and the importance to be attached to the viva voce test in such a case would therefore necessarily be minimal. It was for this reason that in Ajay Hasia case [(1981) 1 SCC 722 : 1981 SCC (L&S) 258 : AIR 1981 SC 487 : (1981) 2 SCR 79] this Court took the view that the allocation of as high a percentage of marks as 33.3 per cent to the viva voce test was "beyond all reasonable proportion and rendered the selection of the candidates arbitrary". But, as pointed out by Chinnappa Reddy, J., "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". There may also be 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 in case of such services where sound selection must combine academic ability with personality promise, some weight has to be given to the viva voce test. 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 for 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 Reddy, J., in Lila Dhar case [(1981) 4 SCC 159 : 1981 SCC (L&S) 588 : AIR 1981 SC 1777 : (1982) 1 SCR 320] "exaggerated weight has been given with proven or obvious oblique motives"."
20. Subsequently, relying on Lila Dhar (supra) and Ashok Kumar Yadav (supra), the Supreme Court in Anzar Ahmad (supra) held that 50 percent weightage to academic marks and 50 percent marks for interview does not suffer from the vice of arbitrariness. Relevant paragraphs are delineated below:
"14. These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis-a-vis marks for written examination can arise when written examination as well as viva voce test are both accepted as essential features of proper selection and there also no hard and fast rule regarding the precise weight to be given to the viva voce test as against written examination, can be laid down and the said weight must vary from service to service according to the requirement of the service. The question of weight to be attached to viva voce would not arise where the selection is to be made on the basis of interview only. In Ashok Kumar Yadav case [(1985) 4 SCC 417 : 1986 SCC (L&S) 88 : 1985 Supp 1 SCR 657] this Court has held that in the case of ex- service officers viva voce test may be attached relatively greater weight because the personalities of such officers being fully mature and developed it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva voce test. But at the same time the Court felt that the allocation of 33.3% marks for viva voce test for ex-service officers and 22.2% for other candidates was excessive and that the same should not exceed 25% for ex-service officers and 12.2% for other candidates.
.....
20. In the instant case, we find that the State Government in its letter dated September 20, 1990 has clearly stated that selection should be made on the basis of interview. On the basis of this letter the Commission could have made the selection wholly on the basis of marks obtained at the interview. But in accordance with the past practice, the Commission has made the selection on the basis of interview while keeping in view the academic performance and with that end in view the Commission has allocated 50% marks for academic performance and 50% marks for interview. It cannot be held that the said procedure adopted by the Commission suffers from the vice of arbitrariness. By giving equal weight to academic performance the Commission has rather reduced the possibility of arbitrariness."
21. In the case of Union of India and Ors. -v- N. Chandrasekharan and Ors. (supra) the Supreme Court while examining the marks given for an interview (30 percent) in cases of promotion held that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. It was further held looking into the composition of the interview committee that there was no scope for arbitrary exercise of selection or favouritism. The Court further went on to hold that though in the pleadings mala fides was raised vaguely, nothing was established and accordingly, in the absence of any mala fides pleaded and established, the importance given to the interview cannot by any means be termed as arbitrary or violative of Article 14 or 16 of the Constitution. The relevant paragraphs are provided below:
"13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. Even on merits, we agree with the learned Senior Counsel for the appellants that due regard must be had to the posts to which the candidates are to be promoted as well as to the nature of duties they have to discharge/perform and so viewing the marks given to the interview cannot be considered as disproportionately high or the spread of marks was done arbitrarily. The Departmental Promotion Committee consisted of the following personalities:
Designation Location
1. Jt. Secretary to GOI Chairman DOS Bangalore
2. Scientific Secretary, Alt. Chairman/ ISRO HQ.
ISRO Member Bangalore
3. Head, Programme Member ISAC, Bangalore
Planning &
Evaluation Division
4. Addl. Chief Member CED, Bangalore
Engineer
5. Head Purchase & Member VSSC,
Stores Trivandrum
6. Head Purchase & Member SHAR,
Stores Sriharikota
7. Head Purchase & Member ISAC, Bangalore
Stores
8. Head Purchase & Member SAC,
Stores Ahmedabad
14. A look at the above composition will place beyond any reasonable doubt that there was no scope for arbitrary exercise of selection or favouritism. It is also relevant to point out that though in the pleadings mala fides was raised vaguely, nothing was established nor did the Tribunal discuss about it. In the absence of any mala fides pleaded and established and in the facts and circumstances of this case, the importance given to the interview cannot by any means be termed as arbitrary or violative of Article 14 or 16 of the Constitution."
22. In the case of Kiran Gupta and Ors. (supra) Supreme Court held that in certain cases the mode of selection may be only on the basis of interview and in such situations, the question of percentage of marks awarded for the interview does not arise. The relevant portion is provided below:
"21. In Janki Prasad Parimoo v. State of J&K [(1973) 1 SCC 420 : 1973 SCC (L&S) 217] the challenge was against selection for the posts of Headmasters made by the Selection Committee on the basis of interview. A Constitution Bench of this Court while approving the method of selection by interview, held that when appointment to higher posts were made it might be perfectly legitimate to test the candidate at a properly-conducted interview. It was observed that the efficiency of a teacher and his qualification to be appointed as a Headmaster depended upon several considerations -- his character, his teaching experience, ability to manage his class, his popularity with the students and the high percentage of successful students he was able to produce; and that all those matters must be necessarily taken into consideration before making a selection.
22. It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for interview does not arise. ..........."
23. First, I will look into the importance of the interview/viva voce component in a selection procedure. In the case of Ashok Kumar Yadav (supra), the Supreme Court held that the viva voce test performs an important function in assessing personal characteristics and traits of the candidates but oral interview can also lead to arbitrariness and too much reliance on this test may lead to sabotage of the purity of the proceedings. Hence, the Supreme Court in Ashok Yadav (supra) decided that the viva voce component should be 12.2% which maintains a proper balance between written test and oral interviews in selection to public service commission examinations. The Supreme Court quashed the 33% allocated to viva voce in Ashok Yadav (supra) as, in the facts and circumstances of the case, they held that it can lead to arbitrariness. However, subsequently the court has accepted allocation of higher percentage of marks for viva voce for recruitment to higher administrative service.
24. Supreme Court in the earlier judgment of Lila Dhar (supra) held that a written test assesses man's intellect and the interview test the man himself and in cases where selection is to be made out of mature persons, a higher weightage may be given to the viva-voce test. In the case of Mehmood Alam Tariq and Others -v- State of Rajasthan and Others reported in AIR 1988 SC 1451 [Coram: Ranganath Misra and M.N. Venkatachaliah, JJ.], Supreme Court accepted the 33% marks that was allotted for viva-voce with the reasoning that the officials to be selected for higher services would be required "to man increasingly responsible positions in the core services" and hence it is to be tested whether these men possess the personality traits according to the level of performance in such interviews. Similarly, 35% marks allocation for viva-voce for selection for judicial branch was upheld in the case of State of Uttar Pradesh -v- Rafiquddin and Others reported in AIR 1988 SC 162 [Coram: E.S. Venkataramiah and K. N. Singh, JJ.]. In the case of Indian Airlines Corporation -v- Capt. K.C. Shukla and Others reported in 1993(1) SCC 17 [Coram: S. Ratnavel Pandian and R.M. Sahai, JJ.], Supreme Court pointed out that a distinction is there in interviews held for competitive examination or admission in educational institution or selection for higher posts and a particular percentage cannot be decided for viva-voce, there cannot be any hard and fast rule about it and it depends on the level of post and the nature of performance expected from the candidate. Furthermore, as noted in Anzar Ahmad and Ors. (supra) even 50% weightage in academic marks and 50% for interview does not suffer from the voice of arbitrariness. Moreover, in Kiran Gupta and Ors. (supra) the Supreme Court has categorically held that there may be certain cases where the mode of selection may be only on the basis of interview and in such situations the question of percentage of marks awarded for the interview does not arise at all. On an examination of the abovementioned judgments of the Supreme Court, it becomes clear that no hard and fast rules can be applicable for deciding on the percentage of marks to be awarded for a viva-voce. Each case has to be decided keeping in mind various factors.
25. The principles enunciated in Lila Dhar (supra) still hold the fort. The words of Chinappa Reddy, J. ring loud and clear - "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."
26. The judgments relied upon by the petitioner in Ashok Kumar Yadav (supra), Ajay Hasia and Ors. (supra), Minor A. Peeriakaruppan, Nishi Maghu (miss) and Ors. (supra), Abhijit Dey (supra) and P. Mohanan Pillai (supra) all deal with a selection procedure that included a written examination followed by a interview. It has to be kept in mind that the judgment in Ashok Kumar Yadav (supra) dealt with a case of a written examination followed by an interview and the principles laid down in the said judgment would be applicable to similar facts and circumstances. The Supreme Court judgments cited by the petitioner that followed Ashok Kumar Yadav (supra) were all in relation to a selection process that involved an examination process followed by an interview. In contrast, the present case deals with a situation that is more akin to the Supreme Court judgment in Anzar Ahmed & Ors. (supra) wherein 50% weightage was given to academic marks and 50% marks were allocated for the interview. The other case that is closer to the facts of the present case is Kiran Gupta & Ors. (supra) wherein the mode of selection was only on the basis of the interview and accordingly the court held that the weightage of percentage or marks awarded for the interview did not arise at all. In the case at hand, keeping in mind that in the present selection process 35 marks were awarded for academic qualification and 25 marks for the class demonstration and the viva voce, the fact that there was no written test, the selection was for the post of Assistant Teacher which would require a good personality and a mature individual and that the selection was done by a distinguished panel, I am of the opinion that the selection process was proper and did not suffer from any illegality or arbitrariness.
27. With regard to the second issue on Doctrine of Precedents, the law is well settled and this court having examined a host of judgements in Bijon Mukherjee -v- State of West Bengal reported in (2018) 3 CAL LT 136 (HC) [Coram: Shekhar B. Saraf, J.] has held that when there are two reconciling matters passed by the court on the same point of law, then one needs to see if the later smaller bench decisions have taken the larger bench into consideration. If yes, then it is mandatory for the High courts to follow the subsequent smaller bench decision. The relevant portion from the judgment delivered by me is delineated below:
"18. In my opinion, the case of Commissioner of Income-Tax, W.B.-III - v- Oberoi Hotels reported in 2011(4) CHN (CAL) 552 [Coram: Bhaskar Bhattacharya and Sambuddha Chakrabarti, JJ.] is also to be considered. In this case, two Supreme Court judgements in McDowell & Company Ltd. - v- Commercial Tax Officer reported in 1985 (3) SCC 230 and Union of India
-v- Ajadi Bachao Andolan reported in 2003 (263) ITA 706 were cited at the Bar. The former was a 5-Judge Bench of the Supreme Court while the latter was a subsequent 2-Judge Bench which considered the same matter at hand and dissented from the ratio laid down in McDowell (supra). Justice B. Bhattacharya held that the ratio laid down subsequently by the smaller bench of the Supreme Court must be followed over the earlier judgement by a larger Supreme Court bench, when the former has taken the decision by the larger bench of the Supreme Court into consideration. Furthermore, the view of the subsequent judgement can only be rejected in the event that the subsequent Bench had not taken the decision taken earlier by the larger Bench into consideration. The High Court in such an event would be entitled to reject the ratio laid down in the subsequent smaller Bench judgement as per incuriam."
(emphasis supplied by me)
28. In the present case, the smaller bench judgements relied upon by the respondents have all examined and relied upon Ashok Kumar Yadav (supra). In fact, the subsequent smaller benches have carved the principles of selection in different areas basing their reasoning on the above Larger bench judgement. Ergo, no room for doubt is left and the subsequent smaller bench judgements have to be followed by me. In any event, I find that the larger bench judgement of Ashok Kumar Yadav (supra) and subsequent judgements are not in conflict in any manner whatsoever. The larger bench itself had relied heavily on Lila Dhar (supra) that had stated that there is no thumb rule for deciding the weightage of marks to be allocated for interview. Furthermore as pointed out by me earlier, the facts of the present case are different from those in Ashok Kumar Yadav (supra) as in the present case there was no written examination and the selection was based only on the academic qualification and the class demonstration and viva-voce. In such a situation, I am of the view that I am required to follow the subsequent judgments of Anzar Ahmed and Ors. (supra) and Kiran Gupta and Ors. (supra) that are factually similar to the present case.
29. With regard to the third issue as to whether an unsuccessful candidate can challenge the selection process, the precedents are clear that the candidate can make a challenge only if he is able to show malafide and/or arbitrariness. One may examine a few cases in greater detail to come to the correct conclusion. In the case of Jasvinder Singh and Ors. (supra), the Supreme Court held that there is no guarantee that a person who scores well in written test shall also score well in the interview and unless specific allegation of malafides or bias is proved the high marks scored in interview cannot lead to an inference of vice in the selection process. The relevant portion at paragraph 8 of the judgement is provided below:
"8. ........ There is no guarantee that a person who fared well in the written test will or should be presumed to have fared well in the viva voce test also and the expert opinion about as well as experience in viva voce does not lend credence to any such general assumptions, in all circumstances and for all eventualities. That apart, the variation of written test marks of those who were found to have been awarded higher marks in viva voce vis-à-vis those who secured higher marks in the written test but not so in the viva voce cannot be said to be so much (varying from five marks and at any rate below even 10) as to warrant any proof of inherent vice in the very system of selection or the actual selection in the case. There was no specific allegation of any mala fides or bias against the Board constituted for selection or anyone in the Board nor any such plea could be said to have been substantiated in this case. ........."
30. In the case of Manish Kumar Shahi (supra) the Supreme Court upheld the High Court's order of rejecting the writ petition of an unsuccessful candidate observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , Marripati Nagaraja v. Govt. of A.P. [(2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68] , Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005] , Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] ."
31. In the case of Dhananjay Malik and Ors. (supra) the Supreme Court held that the respondent-writ petitioners having participated in the selection process without any demur were estopped from complaining that the selection process was not in accordance with the Rules. Supreme Court further went to hold that if the petitioners were of the view that the advertisement and selection process were not in accordance with the Rules they should have challenged the advertisement and selection process without participating in the selection process. The relevant paragraphs are delineated below:
"8. In Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in Marripati Nagaraja v. Govt. of A.P. [(2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68 : (2007) 11 SCR 506] , SCR at p. 516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."
32. In a recent case of Ashok Kumar and Ors. -v- State of Bihar and Ors. reported in (2017) 4 SCC 357 [Coram: Dr. T.S. Thakur, C.J. and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.] the Supreme Court relying on Manish Kumar Shahi (supra) held that it was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. The observations of the Supreme Court that would apply to the present case are delineated below:
"15. In Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , the same principle was reiterated in the following observations: (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 4 SLR 272] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. ............"
19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment [Anurag Verma v. State of Bihar, 2011 SCC OnLine Pat 1289.] that the interpretation of Rule 6 was not free from vagueness. There was, in other words, no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation.
21. In this view of the matter, the Division Bench cannot held to be in error in coming to the conclusion that it was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. ............."
33. In the case of Dalpat Abasaheb Solunke (supra) the Supreme Court categorically held that a selection process cannot be interfered by the Courts unless it is proved that there was illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection. The relevant paragraphs are delineated below:
"12. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. 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 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 the 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."
34. In the case of Ratnagiri Gas & Power Pvt. Ltd. (supra) the Supreme observed that the burden of proving malafide is upon the person alleging the same and it is not sufficient to simpliciter make vague or bold statements without properly demonstrating the same. The relevant paragraphs are delineated below:
"25. Even otherwise the findings recorded by the High Court on the question of mala fides do not appear to us to be factually or legally sustainable. While we do not consider it necessary to delve deep into this aspect of the controversy, we may point out that allegations of mala fides are more easily made than proved. The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision-maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.
26.1. In State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] this Court summed up the law on the subject in the following words: (SCC p. 260, paras 50-51) "50. 'Mala fides' means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand."
(emphasis supplied)
27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding."
35. The principle that emerges from an examination of the abovementioned judgments is that the Court in its discretionary jurisdiction under Article 226 of the Constitution of India may refuse to entertain the writ petition on the ground that the petitioner having appeared at the interview without any demur is estopped from challenging the process of the selection having failed to qualify in the said selection process. The judgments of the Supreme Court in Manish Kumar Shahi (supra), Dhananjay Malik and Ors. (supra) and Ashok Kumar and Ors. (supra) clearly lay down the principle that an unsuccessful candidate who had gone through the selection process knowing fully well the percentage of marks allocated in the selection process is estopped and precluded from questioning the above selection process. The conduct of the petitioner disentitles him from questioning the selection process having not succeeded in the same. It may be pointed out here that the only exception to the petitioner being estopped from challenging the selection process is when he is able to clearly show arbitrariness and/or malafide intention of the Selection Committee.
36. As seen in Jasvinder Singh and Ors. (supra), the factual aspect that a person scores high in the written test and does not do so in the interview cannot lead to an inference of malafide or bias in the selection process. Furthermore, the judgments of the Supreme Court in Dalpat Abasaheb Solunke (supra), Ratnagiri Gas and Power Pvt. Ltd. (supra) and Ashok Kumar and Ors. (supra) clearly lay down the guidelines for proving malafide intention. The judgments clearly enunciate the ratio that mere assertion or a vague or bold statement is not sufficient to prove malafide. It is on the petitioner to demonstrate lucidly that the action taken by the Selection Committee was not done in good faith and was a result of bias or ulterior motive. It is imperative that the person who alleges malice/malafide/arbitrariness should furnish particulars that would prove the same. Ambiguous reasons unsupported by hard facts cannot lead to a conclusion of malafide or arbitrariness.
37. In the present case, one does not even find proper pleadings of malafide in the writ petition. Furthermore, it is to be noted that though the Selection Committee has been made a party respondent, the persons in the Selection Committee individually have not been made parties. Moreover, there is not a single word in the writ petition even alleging that any of the members had a bias and/or an ulterior motive in the selection process. First of all, having not made the selection committee members a party, allegations of malafide, unsupported by any documents on record, should not be entertained by the writ court. It is trite law that to prove a case of malafide against a person that person has to be made a party and has to be given a chance to defend himself. In the present case the same has not been done by the petitioner. As pointed out by me earlier, just because a person has scored high marks in interview as compared to the written examination cannot lead to an inference of malafide unless the same is supported by the factual aspect of proving malafide with cogent reasons and substantive documents. The petitioner has only made vague allegations of malice without a shred of evidence against any of the members. I would point out that the five members of the Selection Committee are respectable members holding high posts and their credibility cannot and should not be impeached by such ambiguous, vague and unsupported allegations. I accordingly hold that the petitioner being an unsuccessful candidate is estopped from challenging the selection process after having participated in the same without any demur against the same. More so, as the allegations he has made with regard to malafides and arbitrariness are completely vague, ambiguous, unsupported by any shred of evidence resulting in the same remaining only a figment of his imagination.
38. With regard to the issue as to whether minority institutions are subject to writ jurisdiction, one may look at the judgment in Queen Mary's School & Ors. -v- UOI & Ors. reported in 185 (2011) DLT 168; MANU/DE/4496/2011 [Coram: S. Ravindra Bhat and G. P. Mittal, JJ.] that established that the decision of selection and appointment of teachers for an educational institution are an important part of running the educational institution. The State, directly or indirectly, cannot take away the right to give a decisive role or say in appointment of teachers as the same would violate the rights guaranteed under Article 30(1) of the Constitution of India. The relevant paragraph is delineated below:
"15. The right guaranteed under Article 30(1) is not subject to any entrenched "reasonable restriction" provision-an aspect which has been repeatedly highlighted in various judgments. The character of permissible state action is therefore, necessarily different from those in relation to other fundamental rights, particularly as in Article 19. The Constitution makers in their wisdom, felt that this provision guaranteed minorities - both linguistic, and religious, the right to propagate their culture, and also ensure that the children of their communities could be assured some modicum of education, so that they could advance with the times. The provision is to be seen as a protective cover to preserve the multicultural fabric of the Indian identity, against possible onslaught resulting from political vicissitudes through hostile legislative majorities."
39. In the case of St. Francis de Sales Education Society & Ors. -v- State of Maharashtra & Ors. reported in 2001 (3) MHLJ 261; MANU/MH/0815/2001 [Coram: B.N. Srikrishna, R.K. Batta and P.S. Brahme, JJ.] when the educational officer refused the proposal of appointments on the ground that they did not fulfil the requirements as laid down under Sec. 3(2) and Rules 9(7) to 9(10) of the reservation policy, the Full Bench held that the fundamental rights as granted under Article 30(1) are absolute and not subject to reasonable restrictions as under Article 19 and the petitioner being a minority institution cannot be directed to appoint teachers on basis of a reservation policy followed by State as they have the complete autonomy to decide rules for selection of appointment of teachers by themselves.
40. The Supreme Court judgment in Ivy C. Da Conceicao (supra) relied upon by the petitioner merely states that the autonomy granted to a minority institution by the Constitution does not automatically give a right to the institution to act in an unfair manner. The Apex Court further held that the High Court under Article 226 of the Constitution has the duty to examine whether the appointments made by a minority institution are done in a fair and reasonable manner and to check whether there has been any violation of the right of a individual by not adopting fair procedure. The relevant paragraphs are delineated below:
"15. The above decisions clearly show that autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.
16. We, thus, hold that while under the constitutional scheme, a "minority institution" is free to select and appoint a Principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution. Since this aspect of the matter has not been gone into by the High Court, we allow this appeal and set aside the impugned order. The matter stands remitted back to the High Court for a fresh decision in accordance with law. We make it clear that we have not expressed any opinion on merits of the controversy between the parties. No costs."
41. In the present case, the concerned school is a minority institution and exempt under Section 15 of the West Bengal School Service Commission Act, 1997. The only guiding factor is the notification dated 3rd February, 2016 (Commission Rules) that states that the minority institutions are required to follow the minimum academic qualifications, professional qualifications, age limit and citizenship as laid down in the relevant recruitment rules framed under the West Bengal School Service Commission Act. Clause 5 of the Commission Rules gives the minority schools the autonomy to have their own selection procedure subject to the condition that the norms of the Selection Committee are formed by the governing body three months prior to the date of interview and the same is communicated to the District Inspector of Schools. As has been clearly pointed out by the counsel appearing for the concerned school, such intimation of the selection procedure was sent to the District Inspector of Schools on June 19, 2017, that is, three months prior to the interview held on October 16, 2017. In light of the above, I am neither able to find any violation of the concerned rules applicable to minority institutions nor the violation of any individual rights of the petitioner by the means of any unfair procedure adopted by the above minority institution, and accordingly, hold that the procedure followed by the concerned school was not arbitrary or unjust in any manner whatsoever. In such a situation, I hold that the concerned school, in the facts and circumstances of the instant case, is not subject to the writ jurisdiction.
42. In conclusion, I answer the four queries raised at paragraph 17 as follows:
Issue I: Whether the viva-voce component being more than 12.2% the entire selection process was vitiated and was malafide and arbitrary as per the ratio of Ashok Kumar Yadav (supra)?
Answer: Relying on the Supreme Court judgments including Ashok Kumar Yadav (supra) on the weightage to be given to an interview, the principle that emerges is that there is no thumb rule relating to precise weightage to be given and the same may vary from service to service and the post to which the appointment is being made. The weightage is to be determined by experts and should not fall upon the courts to pronounce upon the correct weightage unless it is proved that exaggerated weightage has been given malafide and with oblique/motive.
Accordingly, in the present case since the selection was on the basis of class demonstration and viva-voce as the assistant teacher had to be tested on his personality and maturity, the fact that there was no written examination and the fact that the selection was done by a distinguished panel, I hold that the weightage given to the class demonstration and viva-voce was proper and not exceedingly high.
Issue II: Whether the larger bench judgment of Ashok Kumar Yadav (supra) prevails over the subsequent judgments of smaller benches of the Supreme Court?
Answer: This issue is more academic in nature as I find that the larger bench judgment of Ashok Kumar Yadav (supra) and subsequent judgments of the Supreme Court are not in conflict with each other. Even if it were to be argued that they are in conflict, as the subsequent smaller benches of the Supreme Court have carved the principles of selection in different areas relying on the judgment in Ashok Kumar Yadav (supra), I hold that the subsequent smaller bench judgments that have relied specifically on Ashok Kumar Yadav (supra) have binding precedential value on the High Court. Accordingly, I am required to follow the subsequent smaller bench judgments. Issue III: Whether the petitioner being an unsuccessful candidate, in the present facts and circumstances, has a right to approach the writ court to challenge the selection procedure?
Answer: The judgments of the Supreme Court in Manish Kumar Shahi (supra), Dhananjay Malik and Ors. (supra) and Ashok Kumar and Ors. (supra) clearly lay down the principle that an unsuccessful candidate who had gone through the selection process knowing fully well the percentage of marks allocated in the selection process is estopped and precluded from questioning the above selection process, the only exception being when the petitioner is able to demonstrate lucidly that the action taken by the Selection Committee was not done in good faith and was a result of bias or ulterior motive. It is imperative that the person who alleges malice/malafide/arbitrariness should furnish particulars that would prove the same. Ambiguous reasons unsupported by hard facts cannot lead to a conclusion of malafide or arbitrariness. The facts of the present case wherein the writ petitioner has not even made the members of the selection committee party to the writ petition, lack of proper pleadings of malafide/malice/arbitrariness and bias/ulterior motive, absence of any evidence whatsoever to support the above allegations, leads me to unequivocally hold that no foundation has been laid to be even allow the writ court to look into the above allegations. The petitioner has only made vague allegations of malice without a shred of evidence against any of the members. Furthermore, I would point out that the five members of the Selection Committee are respectable members holding high posts and their credibility cannot be sullied by such ambiguous, vague and dubitable allegations. I, accordingly, hold that the petitioner being an unsuccessful candidate is estopped from challenging the selection process after having participated in the same without any demur against the same and only subsequently making allegations with regard to malafides and arbitrariness that are completely vague, ambiguous and unsubstantiated by any iota of evidence culminating in the same remaining only a figment of his imagination.
Issue IV: Whether in the facts and circumstances of the case, the present minority institution school is subject to writ jurisdiction within the framework of Article 30 of the Constitution of India. Answer: The Commission Rules gives the minority schools the autonomy to have their own selection procedure subject to the condition that the norms of the Selection Committee are formed by the governing body three months prior to the date of interview and the same is communicated to the District Inspector of Schools. In the instant case, such intimation of the selection procedure was sent to the District Inspector of Schools on June 19, 2017, that is, three months prior to the interview held on October 16, 2017. In light of the above, I am neither able to find any violation of the concerned rules applicable to minority institutions nor the violation of any individual right of the petitioner, and accordingly, hold that the procedure followed by the concerned school was fair and above board and therefore the concerned school, in the facts and circumstances of this case, is not subject to the writ jurisdiction.
43. As a consequence of the discussions and reasons provided above, I find no reason to accept the contentions and allegations made by the petitioner against the respondents and dismiss the writ petition. As the writ petition raised certain interesting legal issues, I see no reason for imposing any costs.
44. A judgement is a reflection of the assistance provided by the learned counsel appearing in the matter. Accordingly, I wish to acknowledge the painstaking efforts taken by Mr. Partha Sarthi Sengupta, Senior Advocate, Ms. Atasi Ghosh, Advocate appearing on behalf of the respondents, Mr. Biswarup Biswas, learned Counsel for the petitioner and Mr. Supriyo Chattopadhyay in rendering superlative support to the Bench in this matter.
45. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Shekhar B. Saraf, J.)