Allahabad High Court
Ghanshyam Kanaujia & 8 Ors. [At:02:00 ... vs State Of U.P. Through Prin. Secy. ... on 29 May, 2013
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Court No. - 18 Case :- SERVICE SINGLE No. - 2350 of 2013 Petitioner :- Ghanshyam Kanaujia & 8 Ors. [At:02:00 P.M.] Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Deptt. Lk Petitioner Counsel :- Kuldeep Pati Tripathi,Kaushalendra Tewari Respondent Counsel :- C.S.C. And Case :- SERVICE SINGLE No. - 2365 of 2013 Petitioner :- Dhananjay Kumar Vashishtha & 8 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Services Petitioner Counsel :- Rakesh Chandra Tewari Respondent Counsel :- C.S.C. And Case :- SERVICE SINGLE No. - 2447 of 2013 Petitioner :- Harendra Kumar Respondent :- State Of U.P. Through Medical Secy. Lko. & Another Petitioner Counsel :- Arvind Kumar Sinha Respondent Counsel :- C.S.C. And Case :- SERVICE SINGLE No. - 2400 of 2013 Petitioner :- Kursheed Alam Respondent :- State Of U.P. Through Prin. Secy.Medical & Health & Another Petitioner Counsel :- Ruved Kamaal Kidwai Respondent Counsel :- C.S.C. And Case :- SERVICE SINGLE No. - 2451 of 2013 Petitioner :- Rajesh Kumar Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Services Petitioner Counsel :- Hari Prasad Gupta Respondent Counsel :- C.S.C. And Case :- SERVICE SINGLE No. - 2518 of 2013 Petitioner :- Dinesh Kumar Singh Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & Or Petitioner Counsel :- Raj Karan Singh Respondent Counsel :- C.S.C. And Case :- SERVICE SINGLE No. - 2381 of 2013 Petitioner :- Pavendra Nath Pathak Respondent :- State Of U.P. Through Prin. Secy. Medical Health Lko. & Ors. Petitioner Counsel :- Om Prakash Srivastava,Anjali Mishra,Atul Kumar Srivastava Respondent Counsel :- C.S.C. Hon'ble Anil Kumar,J.
Heard Shri Kuldeep Pati Tripathi, Advocate, Rakesh Chandra Tewari, Advocate, Arvind Kumar Sinha, Advocate, Ruved Kamaal Kidwai, Advocate, Hari Prasad Gupta, Advocate, Raj Karan Singh, Advocate, Om Prakash Srivastava, learned counsel for the petitioners, Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel and perused the record.
With the consent of the learned counsel for the parties, Writ Petition No.2350 (SS) of 2013 "Ghanshyam Kanaujia & Ors. vs. State of U.P. & Others", Writ Petition No.2365 (SS) of 2013 "Dhananjay Kumar Vashishtha & Ors. vs. State of U.P. & Ors. & Ors.", Writ Petition No.2447 (SS) of 2013 "Harendra Kumar vs. State of U.P. & Ors.", Writ Petition No.2440 (SS) of 2013 "Kursheed Alam vs. State of U.P. & another", Writ Petition No.2451 (SS) of 2013 "Rajesh Kumar vs. State of U.P. & Ors.", Writ Petition No.2518 (SS) of 2013 "D. K. Singh vs. State of U.P. & Ors.", and Writ Petition No.2381 (SS) of 2013 "P. N. Pathak vs. State of U.P. & Ors." are being heard together and decided by common judgment.
In the matter in issue, an advertisement has been issued by the opposite party no.3/Joint Director (Netra Upchar), Medical and Health Services, Lucknow for appointment on 38 posts of "Optometrist" (now known as Eye Examination Officer) in Medical and Health Department, State of U.P, Lucknow out of which 16 posts are for General Category, 6 posts for Other Backward Classes, 5 posts for Schedule Tribes and 11 posts of Schedule Caste Category and the selection is to be done as per the provisions as provided under the Rules known as U.P. Ophthalmic/Assistant Ophthalmic Service Rules 1993 as amended till date read with Uttar Pradesh Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of Public Service Commission) Rules, 2002 and Uttar Pradesh Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of Public Service Commission) (Second Amendment) Rules 2007.
Rule 5 of the U.P. Procedure for Direct Recruitment for Group-C Posts outside purview of Public Service Commission) Rules 2002 as amended till date (hereinafter referred to as Rules) provides the procedure for "direct recruitment", the relevant portions of the same necessary to decided and adjudicate the controversy involved in the present case are being reproduced herein below:-
Rule 5 (1) - For making direct recruitment the vacancies shall be notified in the following manner:-
(i)by issuing advertisement in daily newspaper having wide circulation;
(ii)by passing the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspapers; and
(iii) by notifying vacancies to the Employment Exchange.
(2)Application for being considered for selection shall be called in the form published in the advertisement issued under sub rule (1).
(3)The selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-
(a) (1) Such posts for which only academic qualifications are prescribed, the marks shall be awarded to each candidate in the following manner:
Academic Percentage of marks Marks to be awarded Qualification secured Intermediate Sixty percent and above Twenty Marks Forty Five percent or above but Fifteen Marks less than sixty percent Thirty three percent or above Ten Marks but less than Forty Five percent
Rule 5 (3) (d) reads as under :- In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting as the case may be, of qualifying nature. Only those candidates who have attained the minimum speed prescribed for typewriting or shorthand and typewriting, as the case may be, shall be considerred for selection. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be such as is considered appropriate by the Selection Committee. For this purpose the merit list of candidates shall, having regard to the provisions of reservation referred to in rule-4, be made separately on the basis of marks obtained by them under clauses (a), (b) and (c).
Rule 5 (4) (a) reads as under :- After the merits of the evaluation under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in rule-4, hold as interview. The number of candidates to be called for interview against the number of vacancies shall be such as is considered appropriate by the Selection Committee, but in any case it shall not exceed ten candidates for one vacancy. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview.
(b) The interview shall carry fifty marks. Marks at the interview shall be awarded in the following manner:-
(i)Subject/General Knowledge- Up to ten marks.
(ii)Personality Assessment - Up to twenty marks.
(iii) Power of Expression - Up to twenty marks.
In response to the above said advertisement, petitioners submitted their candidature and the qualification possessed by them are as under:-
(A) WRIT PETITION NO.2350 (SS) OF 2013 Petitioner no.1/Ghanshyam Kanaujia has passed the Intermediate Examination with First Division and remaining petitioner nos.2 to 9 have passed the said examination with Second Division in addition to the said qualification, they also possess the requisite qualification as prescribed under the Rules.
(B) WRIT PETITION NO.2365 (SS) OF 2013 Petitioners have passed the Intermediate Examination with Second Division and possess other requisite qualification as per Rules and petitioner nos.6 to 9 belong to Schedule Caste Category.
(C) WRIT PETITION NO.2447 (SS) OF 2013 Petitioner has passed the Intermediate Examination and B. Sc. with First Division. He possesses the requisite qualification as per Rules.
(D) WRIT PETITION NO.2440 (SS) OF 2013 Petitioner has passed the Intermediate Examination with Second Division and possesses the requisite qualification as per Rules.
(E) WRIT PETITION NO.2451 (SS) OF 2013 Petitioner has passed the Intermediate Examination with Second Division and possesses the requisite qualification as per rules.
(F) WRIT PETITION NO.2518 (SS) OF 2013 Petitioner has passed the Intermediate Examination with Second Division and possesses the requisite qualification as per Rules.
(G) WRIT PETITION NO.2518 (SS) OF 2013 Petitioner has passed the Intermediate Examination with Second Division and possesses the requisite qualification as per Rules.
Learned counsels for the petitioners argued that once the petitioners possess the requisite qualification as per Rules on the basis of which the selection for the post in question is to be done, then, in view of the provisions as provided under Sub Rule (3) of Rules 5 read with Sub Rule 4 (a) of Rule 5 of the Rules, respondent should first prepare a tabulated chart which has not been done, thereafter they should have called the eligible candidates who have submitted their candidature in response to the advertisement for interview, but the said exercise has not been done by the official respondents. So, the action on their part thereby short listing of the candidates for the purpose of calling them for interview as the large number of candidates have submitted their candidature adopted by the respondents which is neither mentioned in the advertisement nor as per the Rules. So, the action on the part of the official respondent nos.2 and 3 thereby not calling the petitioners for interview is nothing, but a pick and choose policy to call the candidates of their own choice for selection on the post in question, the same is arbitrary in nature, in contravention to the Article 14 of the Constitution of India as well as Principles of Natural Justice.
In support of the said argument, reliance has been placed on the judgment given by the Apex Court in the case of Mohd. Sohrab Khan vs. Aligarh Muslim University and others (2009) 4 SCC 555 (paragraph no.17) on reproduction reads as under:-
"We have gone through the aforesaid advertisement which was issued for filling up various posts and on scrutiny, we find that whenever and wherever the University desired to fill up at variance with the main subject, it is specifically notified and indicated in the said advertisement. For example, advertisement which finds place at Serial No.59 was for filling up the post of Lecturer in Civil Engineering (Environmental Engg.) for University Polytechnic for which qualification which was necessary and essential was mentioned as first class Bachelor's degree in Environmental/Civil/Chemical/Petroleum/Biochemical Engineering/Architecture. Many more posts advertised in the said advertisement specifically indicate that whenever the University desired to have a post filled up in a particular branch of the Humanities and Science Department, it specifically indicated as such in the said advertisement. If it was necessary for the University to fill up the post from the stream of Industrial Chemistry, it would have so indicated in the advertisement itself for in subsequent years, we find specific advertisement has been issued by the same University for filling up the post of Lecturer in Industrial Chemistry by issuing an advertisement specifically in that regard. There is no doubt with regard to the fact that it is the University authority which knows best as to what is their requirement."
Accordingly, it is submitted by learned counsel for the petitioners that the entire exercise done by the official respondent for selecting the candidate for appointment on the post of "Optometrist" is a mala fide exercise of power, done with oblique motive and purpose to choose their own candidates of their own choice, as a result of which petitioners who are fully eligible and possess the requisite qualification as per the Rules have been deprived to be considered for selection without any fault on their part, so the respondent nos.2/3 may be directed to hold a fresh selection in accordance with Rules calling all the petitioners/other eligible candidates as per Rules for selection/appointment on the post in question.
Shri K. D. Tripathi, learned counsel appearing in Writ Petition No.2350 (SS) of 2013 and on the basis of the averments made in the said writ petition submits that respondent no.3/4 have not prepared the tabulation chart correctly and called candidates of their own choice for interview who are lower in rank to the petitioners and it is further submitted that one Km. Ranjana Shukla who did not qualify/possess the requisite qualification, call letter has been issued to her. So the entire exercise for selecting the candidates is nothing, but mere formality on the part of the official respondent to select the candidate of their own choice.
Accordingly, it is submitted by learned counsel for the petitioners that the action on the part of the respondent no.2/3 selecting the candidate by adopting the process of short listing for appointment on the post in question is liable to be set aside and they may be directed to call the candidates/petitioners who are eligible as per the terms of the advertisement/Rules and consider the candidatures by taking the interview for appointment on the post of "Optometrist".
Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel submits that by means of the advertisement dated 5.12.2012, 38 posts of Optometrist (New name 'Eye Examination Officer) were advertised and 3997 applications were invited. The said exercise of selection was to be done in accordance with the U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the purview of Public Service Commission) Rules 2001 as amended from time to time. In response to the said advertisement, against 38 posts, detail applications submitted are as under:-
Sl. No. Category Post Category Wise Applications Received Candidates called for Interview 1 General 16 1667 393 2 OBC 6 1344 250 3 Schedule Caste 5 380 62 4 Schedule Tribe 11 6 6 5 TOTAL 38 3397 711 He further submits that in terms of the provisions of Rule 5 (2) of the Rules, the marks were allotted to all the candidates who had applied in pursuance to the advertisement dated 5.12.2012 and thereafter in terms of Rule 5 (4) (a) of the Rules, the said marks were tabulated.
Thereafter, on 3.4.2013, the selection committee looking into the fact that the number of candidates are more, so as per the discretion vested under Rule 5 of the Rules, the selection committee taken a decision to short list candidates to be called for interview as per the tabulation chart/list prepared, thus, the candidates who had secured 30 marks or above were short listed for interview and the remaining candidates who could not achieve the minimum cut-off marks were not called for interview. The said decision taken by the Selection Committee on 3.4.2013 for the purpose of shortlisting/escalating the candidates for interview is in accordance with the Rules as well as the law as laid down by Hon'ble the Apex Court in the case of B. Ramakichenin Alias Balagandhi vs. Union of India and others (2008) 1 Supreme Court Cases 362 and Tridip Kumar Dingal Vs. State of West Bengal, (2009)1 SCC 768.
Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel, on the basis of the short counter affidavit submits that due to mistake, call letter for interview was wrongly sent to Km. Ranjana Shukla, however, eventually when it was found on scrutiny that she does not possess the requisite technical qualification. So, by means of letter dated 24.4.2013 (Annexure No.SCA-2), Director General, Medical & Health Services, U.P., Lucknow has cancelled the said call letter. Hence, the present writ petition lacks merit and is dismissed.
I have heard learned counsel for the parties and gone through the records.
Selection has always been considered as an administrative function and the administrative authority is regarded the best judge for it. It is the administrative authority that carries out the policy of the State. Public appointments are made to suit the administrator's purpose by appointing those he considers the best among the available candidates. As long as the function of such authority is within the law, courts will be slow to interfere: rather it has no business to interfere. Court could not assess comparative merits in selection and set aside appointments. The Court does not also function as an appellate forum in selection matters.
Any administrative or quasi-judicial body clothed with the powers and left unfettered by the procedures is free to devise its own pragmatic, flexible and functionally viable policy of transacting business, subject to, basics of natural justice, fair play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping within the leading strings of the law.
A selection for particular post/posts by way of advertizement is to select a most suitable candidate for appointment to a public service. A candidate who possess the requisite qualification as per the terms of the advertizement has right to submit his candidature in response to an advertizement in question and yet he may not be qualified interview/participate in the selection process because of limited post i.e. in a situation where a large number of candidates answer to an advertizement of a few vacancies, devise of short listing candidates for interview is undertaken. Such short listing must depend on some formula on rational and reasonable basis which serves the purpose of selection of best of the candidates.
Thus, if a large number of applicants apply for a job then it is permissible for the selecting authority/Committee to screen the candidates at the very threshold of the process of selection by prescribing certain educational certificate to narrow down the field of selection as held by the Supreme Court in the case reported as Madhya Pradesh Public Service Commission Vs. Navnit Kumar Potdar and another, 1994 (6) SCC 293, as under:-
"Para No. 6 - The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate.
Para No. 7 - Herman Finer in his book Theory and Practice of Modem Government at page 779 says:
"If we really care about the efficiency of the civil service as an instrument of Government, rather than as heaven-sent opportunity to find careers for our brilliant students, these principles should be adopted. The interview should last at least half an hour on each of two separate occasions. It should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on such subject, the scope of which would be announced at the interview......
Para No. 8 - The sole purpose of holding interview is to search and select the best among the applicants. It is obvious that it would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview. It appears that Union Public Service Commission has also fixed a ratio for calling the candidates for interview with reference to number of available vacancies.
Para No. 9 - In Kothari Committee's Report on the "Recruitment Policy and Selection Methods for the Civil Services Examination" it has also been pointed out in respect of interview where a written test is also held as follows:
"The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies to be filled ......
In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short-listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of short-listing shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of short-listing is part of the process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short-listed, the process of selection commences, If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice, shall be presumed to have better experience. This process will not be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In a sense Section 8(3)(c) places a bar that no person having less than five years of practice as an advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in conflict with the requirement of Section 8(3)(c) of the Act."
In the aforesaid judgment after placing reliance on the case of State of Haryana Vs. Subash Chander Marwaha, 1974 (3) SCC 220 and in the case of Praveen Kumar Trivedi Vs. Public Service commission, M.P., 1986 Lab IC 1990 (MP), Hon'ble the Supreme Court in paragraph Nos. 10 and 13 held as under:-
"Para No. 10 - This Court in the case of State of Haryana v. Subash Chander Marwaha1 had to consider as to whether the appointments could have been offered only to those who had scored not less than 55% marks when Rule 8 which was under consideration, in that case, made candidates who had obtained 45% or more in competitive examination eligible for appointment. This Court held that Rule 8 was a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit and the one higher in rank is deemed to be more meritorious than the one who is lower in the rank. There was nothing arbitrary in fixing the scoring of 55% for the purpose of selection although a candidate obtaining 45% was eligible to be appointed.
Para No. 13 - The High Court has taken the view that raising the period from five years to seven and half years' practice for purpose of calling the candidates for interview amounted to changing the statutory criteria by an administrative decision. According to us, the High Court has not appreciated the true implication of the short-listing which does not amount to altering or changing of the criteria prescribed in the rule, but is only a part of the selection process. The High Court has placed reliance on the case of Praveenkumar Trivedi v. Public Service Commission, M.P. where it has been pointed out that Commission cannot ignore a statutory requirement for filling up a particular post and cannot opt a criteria whereby candidates fulfilling the statutory requirements are eliminated from being even called for interview. As we have already pointed out that where the selection is to be made purely on the basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the Commission or the Selection Board has no option but to short-list such applicants on some rational and reasonable basis."
Hon'ble the Apex Court in the case of Government of Andhra Pradesh Vs. P. Dilip Kumar and another, 1993 (2) SCC 310, held as under:-
"It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualifications to enter the zone of consideration. It was, therefore, held that screening a candidate out of consideration at the threshold of the process of selection is neither illegal nor unconstitutional if a legitimate field demarcating the choice by reference to some rationale formula is carved out. Thus the challenge based on Articles 14/16 of the Constitution was repelled."
In the case of Union of India and another Vs. T. Sundaraman and others, 1997 (4) SCC 664, Hon'ble the Supreme Court has as under:-
"The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received the commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission Vs. Navnit Kumar potdar & Anr. JT (1994) 6 SC 302 this court has upheld shortlisting of candidates on some rational and reasonable basis. In that case, for the purpose of shortlisting, a longer period of experience than the minimum prescribed was used as a criterion by the public service Commission for calling candidates for an interview. This was upheld by this Court. In the case of Govt. of A.P. vs. P. Dilip Kumar & Anr. JT (1993) 2 SC 138 also this court said that it is always open to the recruiting agency to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the commission was legitimate. The decision of the Tribunal is, therefore, set aside and the appeal is allowed."
In the case of B. Ramakichenin Alias Balagandhi vs. Union of India and others (2008) 1 Supreme Court Cases 362, Hon'ble the Apex Court in paragraph nos.15 to 17 held as under:-
"15. It is well settled that the method of short-listing can be validly adopted by the Selection Body vide Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar and another \026 1994(6) SCC 293 (vide paras 6, 8, 9 and 13), Government of Andhra Pradesh vs. P. Dilip Kumar and another 1993(2) SCC 310.
16. Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of shortlisting can be resorted to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement.
17. However, for valid short-listing there have to be two requirements- (i) It has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc. degree, and if there are a large number of eligible applicants, the Selection Body can resort to short-listing by prescribing certain minimum marks in B.Sc. and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of short-listing is only a practical via-media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) If a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed."
In the case of Tridip Kumar Dingal Vs. State of West Bengal, (2009)1 SCC 768, Hon'ble the Supreme Court held that in absence of any provision of short-listing in the statutory Rules, it is always open to the authority concerned to make a short-listing on the basis of administrative instructions but the said action should be bona fide and reasonable.
In the said matter, there were about 4000 candidates for 80 posts of Medical Technologists. The State in order to short-list the candidates, conducted a written test for which 40% cut-off marks was fixed. This reduced the number of short-listed candidates to 1070. These candidates were interviewed and select list was prepared on the basis of marks obtained by short-listed candidates in interview. The issue was:-
(i)Whether short-listing could be done by holding a written test when there was no provision to this effect in the statutory Rules.
(ii)Whether select list could be prepared solely one the basis of interview or marks both for written test as well as interview ought to have been taken into consideration.
Hon'ble the Supreme Court accepted the contention of the State Government that short-listing the candidates and was in the nature of "elimination test", in the view of the fact that about 4000 candidate had applied against 80 posts and even in the absence of statutory provisions, such an action can be taken on the basis of administrative instructions, for the purpose of "elimination" and "short-listing" of huge number of candidates provided the action is otherwise bona fide and reasonable.
Accordingly, if the selection is to be made purely on the basis of interview and the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the selecting authority has no option but to short-list such applicants on some rational and reasonable basis and the same must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. As the sole purpose of holding interview is to search and select the best among the applicants in viva voce test.
In the selection matters, the State action is immune from judicial review, if, of course, it is free from mala fide and arbitrariness (See. Dalpat Abasaheb Solunke Vs. Dr. B.S. Mahajan, 1990 (1) SCC 305) and if there is a large number of candidates submitted their candidature in response to an advertisement and the posts are few then in that circumstances it will always be open to the authority concerned who is conducting the selection process to adopt the process of short-listing, the candidates are to be called for interview amongst the candidates who had submitted their candidature and the said action on the part of authority concerned cannot held to be arbitrary, voilative of Article 14 of the Constitution of India or de hors to the rules which governs the field keeping in view the following conditions:-
(i)Then the interview is bound to be casual and superficial because of the time constraint.
(ii)The member of the Selection Committee would not be in a position to assess properly the candidates who appear before them for interview.
(iii)It is necessary to fix the limit of the candidate who should be called for interview where there is no written test on some rational and objective basis for the personality and merit of the persons who are called for interview so that they are properly assessed and evaluated.
(iv)The decision regarding short-listing the number of candidates who applied for the post must be based not on any extraneous consideration, but only to aid and held the process of selection of the best candidates among the applicants for the post in question.
(v)This process of short-listing does not amount to altering or substituting the eligibility criteria given in statutory Rules or prospectus.
(vi)The process of short-listing is part of the process of selection. Once the applications are received and the Selection authority/Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short-listed, the process of selection commences.
(vii)The authority/Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants.
In the instant matter, an advertisement was issued on 5.12.2012 for filling up 38 posts of Optometrist (Eye Examination Officer) as per Rules. In response to the same, 3397 applications were received. So, keeping in view the said facts, the selection committee has taken a decision on 3.4.2013 after preparing a tabulation chart (the said document has been produced before this Court and perused) as per the provisions of Rule 5 (4) (a) of the Rules 2002 that all such candidates who had secured 30 marks or above, were short listed and called for interview. The said exercise is neither arbitrary in nature nor contrary to law. Even if there is no rule providing for shortlisting nor any mention of it in the advertisement by which applications have been invited for appointment on the post of Optometrist" (now known as Eye Examination Officer) as the Selection Committee can resort to a shortlisting procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them.
In the result, all writ petitions lack merit and are dismissed.
No order as to costs.
Order Date :- 29.5.2013 Mahesh