Gujarat High Court
Desai Devabhai Gemarbhai vs Information And Broadcasting ... on 6 May, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19294 of 2021
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 2 of
2022
In R/SPECIAL CIVIL APPLICATION NO. 19294 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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DESAI DEVABHAI GEMARBHAI
Versus
INFORMATION AND BROADCASTING DEPARTMENT
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Appearance:
for the Petitioner(s) No. 2,3,4
MR AJ YAGNIK(1372) for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR. VINAY
BAIRAGAR, AGP for the Respondent(s) No. 1,2
MR DG CHAUHAN(218) for the Respondent(s) No. 22
MR N S PARMAR(6785) for the Respondent(s) No. 15,18,21
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS SHIKHA D
PANCHAL(10764) for the Respondent(s) No.
10,11,14,16,17,19,20,23,24,3,4,5,6,7,8
NOTICE SERVED BY DS for the Respondent(s) No.
12,13,25,26,27,9
PARTH J BRAHMBHATT(9373) for the Respondent(s) No.
15,18,21
RONAK D CHAUHAN(7709) for the Respondent(s) No. 22
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C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 06/05/2022
ORAL JUDGMENT
1. This petition is filed under Article 226 of the Constitution of India in which the petitioners have prayed for the following main relief/s:
"(a) Be pleased to hold and declare that the manner and the method of recruitment and particularly the process of oral interview based on change in the composition of panel and the change in the strength of interviewers as stated in the present petition in the matters of recruitment for the post of Deputy Director of Information, Class I and Assistant Director of Information (Journalism), Class II in the Information and Broadcasting Department based on advertisement annexed to the Petition at Annexure - B (Colly) is arbitrary, discriminatory, irrational, and suffers from malafide in law and therefore is violative of Articles 14, 16, 19 & 21 of the Constitution of India and hence illegal and unconstitutional and be further pleased to quash and set aside the selection list of 23 candidates annexed to the present petition at Annexure-A;
(b) Be pleased to direct respondents to initiate a fresh process of oral interview by a panel of interviewers without change in the composition and the strength of interviewers and be further pleased to direct respondents to consider providing new set of panel of interviewers so as to prevent probable victimization and bias towards the petitioners;
(c) During the pendency and till the final disposal of this Petition be pleased to stay the operation, implementation and execution of the list of selected candidates for the post of Deputy Director of Information, Class I and Assistant Director of Information (Journalism), Page 2 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Class II in the Information and Broadcasting Department and be further pleased to direct respondents not to provide employment to any candidate from the final select list at Annexure-A;
(d) Be pleased to hold that not passing a resolution of preparing a waiting list runs contrary to the resolution of the respondent No.2 State of Gujarat (General Administration Department) dated 27.7.2018 at Annexure-C and therefore same is illegal and Unconstitutional being in violative of Article 16 of the Constitution of India."
2. Looking to the issue involved in the present petition, learned counsel appearing for the parties jointly requested that this petition be finally heard at admission stage. Hence, Rule. Learned Assistant Government Pleader Mr. Vinay Bairagar waives service of notice of Rule qua respondent Nos. 1 and 2, learned advocates Ms. Shikha Panchal, Mr. D. G. Chauhan and Mr. N. S. Parmar waive service of notice of Rule qua respective private respondents.
2.1. Heard learned advocate Mr. A. J. Yagnik for the petitioners, learned Advocate General Mr. Kamal B. Trivedi assisted by learned Assistant Government Pleader Mr. Vinay Bairagar for the respondent Nos. 1 and 2, learned Senior Advocate Mr. Shalin Mehta assisted by learned advocate Ms. Shikha Panchal for respondent Nos.3 to 8, 10, 11, 14, 16, 17, 19, 20, 23 and 24, learned advocate Mr. D. G. Chauhan for respondent No.22 and learned advocate Mr. N. S. Parmar for respondent Nos. 15, 18 and 21.
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3. At the outset, it is required to be noted that learned advocate appearing for the petitioners does not press this petition qua petitioner Nos. 1 and 4. Learned advocate has also not pressed relief prayed for in para 6(d). Thus, this petition is considered qua petitioner Nos. 2 and 3 only.
Arguments canvassed by learned counsel for the petitioners 3.1. Learned advocate Mr. A. J. Yagnik submitted that the respondent - State Government in its Information and Broadcasting Department issued G.R. dated 18.12.2015 and thereby constituted a common recruitment committee for facilitating the recruitment procedure for filling up the vacant posts of Deputy Director of Information, Class I and Assistant Director of Information (Journalism), Class II. Thereafter, in exercise of the powers conferred under proviso to Article 309 of the Constitution of India, the State Government in its Information and Broadcasting Department issued two notifications both dated 14.11.2019, whereby the Recruitment Rules for appointment to the posts of Deputy Director of Information, Class I and Assistant Director of Information (Journalism), Class II are framed. Thereafter, in exercise of the powers conferred under proviso to Article 309 of the Constitution of India, the State Government in its Information and Broadcasting Department issued notification dated 09.01.2020 inter-alia framing, ' Deputy Director of Page 4 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Information, Class I and Assistant Director of Information (Journalism), Class II Combined Competitive Examination Rules, 2020' (hereinafter referred to as the 'Rules of 2020').
3.2. Learned advocate Mr. Yagnik, thereafter, contended that respondent No.1 issued advertisement on 21.01.2021 for filling up 8 vacant posts of Deputy Director of Information, Class-I and 15 vacant posts of Assistant Director of Information (Journalism) Class-II. Pursuant to the said advertisement, the petitioners applied for the said posts and they appeared in the preliminary examinations, the main examinations and thereafter in interview. The petitioner nos. 2 and 3 cleared the main examinations and therefore they were called for interview. It is further submitted that the successful candidates were to appear in the oral interview of 100 marks that would be the last stage of the examination. The interview was conducted for a period of five days i.e. on 25.11.2021, 26.11.2021, 27.11.2021, 29.11.2021 and 30.11.2021. It is contended that there is a variation in the number of the members who have taken the interview on all the five days. On the first day, the interview panel consisted of five members, whereas on the fifth day, the panel constituted only of two to three members. Further, during the other days i.e. day nos. 2, 3 and 4, the strength of the panel never remained constant.
3.3. At this stage, it is further contended that after the interview, the respondent authority Page 5 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 declared the result of successful 23 candidates. It is pointed out that petitioners are not selected. However, when petitioners came to know that the process of oral interview was based on change in the composition of panel and change in the strength of the interviewers, petitioners have filed the present petition challenging the aforesaid process of interview.
3.4. Learned advocate Mr. A. J. Yagnik at the outset submits that the petitioners have challenged the recruitment process mainly on the following grounds:
"(A) The composition of panel and number of interviewers kept on changing every day.
If the composition and strength change, then it brings inequality of multitude. The equality of opportunity and equal protection of law as an established principle of equality requires that the composition of panelists and strength of panelists remain same all throughout the process of interview. Thus, the manner and method of interview process is manifestly arbitrary, irrational, discriminatory and violative of Articles 14 and 16 of the Constitution of India;
(B) The act of respondent No.1 in conducting the examination in an arbitrary manner and not creating a wait list of 20% candidates as mandated by law;
Page 6 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 (C) The respondents have not provided any reservation for physically disabled candidates; and (D) One of the panelists Dr. Falguni Vasavada was regularly uploading tweets on twitter giving the interviewees tips on how to clear an oral interview and the dos and don'ts in an interview. Thus, there is mala fide in law."
3.5. At this stage, learned advocate Mr. Yagnik submits that the petitioners do not press for aforesaid grounds (B) and (C) i.e. grounds with regard to the wait list and reservation policy.
3.6. Learned advocate Mr. Yagnik would mainly contend that the interview process was to go on for a period of five days. On day one, the panel comprised of five panelists. The quorum do not remain constant for the remaining other four days e.g. on fifth day, there were only two to three panelists in comparison to five panelists on day one. The oral interview had a weightage of 100 marks. Thus, it can be assumed that on day one each panelist had an opportunity to mark a candidate out of 20 marks. However, on day five, since there were only two panelists, it seems that each panelist must have had an opportunity to mark the candidate out of 50 marks. Thus, in such a scenario there is all likelihood of bias and partiality as in the event that there were five panelists the probability of bias would not affect Page 7 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 the marking much as the maximum weightage that a panelist could wield was only 20 marks. However, in the scenario when there were only two panelists, both panelists had a weightage of 50 marks each and therefore there is a possibility of discrimination, arbitrariness and favoritism. Thus, the panel ought to have remained constant for entire duration of five days.
3.7. At this stage, it is further contended that the G.R. dated 18th December, 2015 issued by the State Government provides for appointment of selection/recruitment committee consisting of five members. The rules framed by the respondent do not provide change of composition/strength. Thus, when the respondent authority, while conducting the interview, has acted in violation of the Rules by taking interview of 101 candidates by different strength/composition of the panelists, the respondent authority has violated Articles 14 and 16 of the Constitution of India.
3.8. Learned advocate would further submit that equality of opportunity, equal treatment and uniform adjudgement are basic principles governing Articles 14 and 16 of the Constitution of India. In the present case, all the aforesaid principles are absent and therefore the respondent authority has acted arbitrarily, which is in violation of Article 14 of the Constitution of India.
3.9. At this stage, learned counsel has referred the Page 8 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 provisions contained in Article 16 of the Constitution of India and submitted that the said Article mandates equality of opportunity in the matters of public employment. When it comes to public employment all must be treated equally and must be given equal opportunity to participate in the selection process. Learned counsel, therefore, urged that on this ground the entire process of interview be quashed and set aside.
3.10. Learned advocate Mr. A. J. Yagnik for the petitioners thereafter referred the G.R. dated 18.12.2015 issued by the State Government and thereafter contended that by way of the said resolution, the State Government has decided to constitute selection/recruitment committee for appointment on the posts of Deputy Director of Information, Class I and Assistant Director of Information (Journalism), Class II. It is submitted that as per the said G.R., the said committee consists of five members.
3.11. At this stage, it is further submitted that thereafter the State Government issued Examination Rules of 2020. Learned counsel referred Rule Nos. 2(a), 2(b), 5, 15, 17, 21 and 26 of the said Rules. After referring to the relevant Rules, it is submitted that the recruitment/selection committee is not empowered to appoint interview committee/interview board for conducting the interview of the aforesaid posts. It is submitted that the selection committee appointed interview Page 9 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 board consisting of six members, for conducting the interview. At this stage, learned counsel has referred to the minutes of the meeting of the selection committee which was held on 12.11.2021. After referring to paragraph Nos. 15 to 18 of the said minutes, it is contended that the selection committee appointed interview board consisting of six members, out of which, one member i.e. Dr. Falguni Vasavada is not connected with any department of the State Government.
3.12. At this stage, learned counsel would further submit that while constituting the said interview board, the selection/recruitment committee also took cognizance of the fact that because of the other important responsibilities on the part of Secretary, Information and Broadcasting Department, there may be possibility that the said member could not remain present and in view thereof, it was resolved that in absence of the said member, the Chairman of the interview board would be in the following manner:
(i) Shri V. S. Gadhvi, (IAS Retd.) and former State Chief Information Commissioner, Gujarat Information Commission.
(ii) Director of Information.
3.13. It is further submitted that in the said meeting it was also resolved that if a particular member is not available because of heavy workload, in his place, another member can remain present at the Page 10 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 time of interview.
3.14. Thus, learned counsel submitted that the recruitment committee has taken the decision in the meeting dated 12.11.2021 dehors the Rules and thereby appointed interview board/interview committee. The interview is taken by the said interview committee and therefore the entire process of interview is vitiated. Learned counsel, therefore, urged that on this ground also the entire process of interview be quashed and set aside.
3.15. Learned counsel Mr. Yagnik lastly submitted that one of the panelists of the interview committee i.e. Dr. Falguni Vasavada was regularly uploading tweets on twitter and thereby giving tips to the candidates that how to clear the oral interview. That as a result of such tweets, the said interviewer has compromised her identity and the same is unwarranted as there is always a possibility that some candidates might approach such interviewer. As a result of such tweets, the genuineness and propriety of the entire interview process itself is questionable and therefore it deserves to be quashed and set aside.
3.16. At this stage, learned counsel submits that the petitioners have not joined Dr. Falguni Vasavada as party respondent as they have not alleged any mala fide in fact. The petitioners have only alleged 'mala fide in law' and therefore Dr. Falguni Vasavada is not necessary to be joined as party respondent.
Page 11 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 3.17. At this stage, it is pertinent to note that learned counsel for the petitioners submitted draft amendment on 02.05.2022 at the midst of the arguments. By way of the said draft amendment, petitioners have requested that selection committee as well as Dr. Falguni Vasavada - member of interview committee be permitted to join as party respondent Nos. 28 and 29. Petitioners have also requested to add certain paragraphs. However, learned counsel appearing for the respondents have vehemently objected such an amendment. Learned counsel appearing for the respondents contended that the State has filed an affidavit in January, 2022, wherein a specific contention is raised by the State that the petitioners have not joined Dr. Falguni Vasavada as party respondent, in spite of that, the petitioners did not take any steps to join the said person as party respondent. Even the draft amendment was allowed on 07.04.2022 by this Court, whereby private respondents/successful candidates are permitted to be joined as party respondents and notice was also issued to the said private parties. It is further submitted that thereafter the matter was argued by the learned counsel for the petitioners on 27th and 28th April, 2022 and only thereafter on 02.05.2022, the petitioners have moved the draft amendment.
3.18. Thus, in the aforesaid facts of the present case, the petitioners are not allowed the amend the petition as prayed for in the draft amendment dated 02.05.2022.
Page 12 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 3.19. Even otherwise, it is contended by learned counsel Mr. Yagnik for the petitioners that petitioners have not alleged any mala fide in fact and therefore Dr. Falguni Vasavada is not joined as party respondent.
3.20. Learned advocate for the petitioners has referred the following decisions rendered by the Hon'ble Supreme Court.
(1) In Madan Lal & Ors. v. State of J & K and Ors., reported in 1995 (3) SCC 489;
(2) In Manish Kumar Shahi v. Shakti Raj, reported in 2010(12) SCC 576; and (3) In Madras Institute of Development Studies and Anr. v. Sanjeev Kumar & Ors., reported in 2016(1) SCC 454.
3.21. After referring to the relevant paragraphs of the aforesaid decisions, it is contended that the Hon'ble Supreme Court, in all the aforesaid decisions, has categorically held that the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. Learned counsel submits that the aforesaid decisions are against the petitioners, however, in the facts of the present case, the aforesaid principle of estoppel would not be applicable. Learned counsel submits that in the present case, the petitioners appeared in the interview and after the process of interview was Page 13 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 over, when they inquired from other candidates, they came to know that the composition and strength of the interview committee was different on different dates of interview. Thus, when the petitioners came to know about the said aspect, they have preferred the present petition.
3.22. Learned advocate Mr. Yagnik thereafter placed reliance upon the following decisions:
(1) In Ramjit Singh Kardam v. Sanjeev Kumar & Ors., reported in 2020 SCC online SC 448; (2) In Raj Kumar v. Shakti Raj, reported in 1997(9) SCC 527;
(3) In J & K SSRB v. Neelam Gupta, reported in 2012 SCC online J & K 120;
(4) Decision in the case of High Court of Kerala v. Siraj rendered in W.A. No.1496 of 2004 by Kerala High Court; and (5) In E. P. Royappa v. State of Tamil Nadu & Anr., reported in (1974) 4 SCC 3.
3.23. After referring to the relevant paragraphs of the aforesaid decisions, learned counsel submitted that the selection and appointment on post in the State have to conform to the fundamental rights guaranteed to the citizens under Articles 14 and 16. The objective of a State in selecting persons into public service has always been to select the best and most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential Page 14 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 foundation of any useful and efficient public service. However, in the present case, the petitioners came to know that the composition and strength of the interview committee changed from time to time after the process of interview was over. Further when the interview committee was appointed dehors the Government Resolution and the Examination Rules, the petitioners have filed the present petition. Learned counsel would thereafter submit that 'malice in fact' and 'malice in law' are two well-known concepts in law. The present one is a case of 'malice in law'. The 'malice in law' means, something done without lawful excuse and 'malice in law' is also mala fide exercise of powers. In the present case, when the selection committee/recruitment committee has appointed interview board in which Dr. Falguni Vasavada, an outsider is appointed for taking the interview and the said interviewer has tweeted on twitter by giving tips, the present one is a case of 'malice in law'.
3.24. Learned advocate Mr.Yagnik has referred the order dated 21.12.2021 passed by this Court in the present petition while issuing notice. It is submitted that this Court has prima facie observed that when an interview committee is constituted of five members then it was incumbent that during the tenure of the interview process, the interview committee should consist of the entire five members. This is to ensure that all the candidates get a chance of being considered uniformly and therefore Page 15 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 the right of the petitioners for being considered in fair and transparent manner by the interview committee is clearly violated. This Court has also observed that when it is clear that the selection committee did not have uniform number of the members on all the five days, prima facie, the interview process would stand vitiated'. It is submitted that after making such prima facie observations, this Court has granted interim relief in favour of the petitioners.
3.25. Learned advocate Mr. Yagnik, therefore, urged that the present petition be allowed and thereby the reliefs prayed for in the present petition be granted to the petitioners.
Arguments canvassed by learned Advocate General appearing for the respondent - State
4. On the other hand, learned Advocate General Mr. Kamal Trivedi has vehemently opposed this petition. Learned Advocate General, at the outset, has referred the chronology of important events.
4.1. After referring to the same, it is contended that on 21.01.2021, an advertisement came to be published for filling up 8 vacant posts of Deputy Director of Information, Class - I and 15 vacant posts of Assistant Director of Information (Journalism) Class-II. Pursuant to the aforesaid advertisement, applications were invited and thereafter a combined preliminary examination came to Page 16 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 be conducted on 27.06.2021 which was cleared by 396 candidates. Thereafter, successful 396 candidates were called in combined main examination which was conducted on 04.09.2021. Thereafter on 12.11.2021, meeting of the recruitment committee came to be convened, wherein, it was decided to call 137 candidates who came to be shortlisted for having cleared the limit of cut off marks for document verification. In addition to this, the said committee also constituted the interview board for taking oral interview of the candidates. Thereafter, on 23.11.2021, once again a meeting of the recruitment committee came to be convened, wherein, after scrutinizing the documents of 137 shortlisted candidates as well as the cut off level, it was resolved that 101 candidates would be called for oral interview. Thereafter oral interviews were conducted on 25.11.2021 to 27.11.2021, 29.11.2021 and 30.11.2021. The interview of the petitioners came to be conducted on 26.11.2021 and thereafter the final selection list comprising of 23 candidates came to be declared on 02.12.2021 on the basis of the marks obtained by each of the 101 candidates. It is submitted that thereafter the petitioners have filed present petition on 14.12.2021.
4.2. Learned Advocate General thereafter has referred the Examination Rules of 2020, copy of which is placed on record at page 24. Learned Advocate General has, more particularly, referred and relied upon Rule Nos. 2(a), 2(b), 4, 5 and 16 of the said Rules.
Page 17 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Learned AG thereafter referred to Schedule I and Schedule II of the said Rules. After referring to the same, it is contended that Rule 4 empowers the Recruitment Committee to regulate all matters relating to appointment of examiner and conduct of examination in accordance with the procedure adopted by it and in conformity with the Government's order in that behalf. It is further submitted that as per Schedule II, the interview shall carry total 100 marks without any minimum qualifying marks as shown in Section 4 of the said Schedule. It is also stated that marks obtained by the candidates in the main examination and interview shall determine the final ranking of the candidates. At this stage, it is also contended that Section 4 of Schedule II provides that the interview shall be of 100 marks. However, there is no mention about other aspect with regard to interview in Section 4.
4.3. At this stage, learned AG further submits that as per Rule 4, the Recruitment Committee is empowered to appoint interview board/interview committee and therefore interview board was constituted in the meeting of selection committee which was held on 12.11.2021. Thus, when the interview committee was formed by the recruitment committee as per Rule 4, it cannot be said that there is no provision of interview committee in the Examination Rules of 2020.
4.4. Learned Advocate General thereafter contended that while constituting the interview Page 18 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 board, the recruitment committee took cognizance of the fact that because of other important responsibilities on the part of Secretary, Information and Broadcasting Department, there may be possibility that the said member could not remain present and in view thereof, it was resolved that in absence of the said member, the Chairman of the interview board would be in the following manner:
(i) Shri V. S. Gadhvi, (IAS Retd.) and former State Chief Information Commissioner, Gujarat Information Commission.
(ii) Director of Information.
4.5. Thereafter, on 23.11.2021, once again the recruitment committee of the Information and Broadcasting Department came to be convened and after evaluating the exercise undertaken with respect to documents verification and considering the cut off level, it was resolved that 101 candidates would be called for oral interview. At the same time, recruitment committee further resolved that Deputy Secretary, General Administration Department may remain present in the interview as per his convenience. Thereafter, oral interview of 101 candidates was conducted, wherein, on each day before the interview the candidates were assigned code numbers i.e. A1 to A10 and A11 to A20 to those candidates who were interviewed on 25.11.2022. Similarly, code numbers B1 to B10 and B11 to B20 were assigned to those candidates who were interviewed on Page 19 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 26.11.2022. Similarly, for other three days also, code numbers C1 to C10 and C11 to C20, D1 to D10 and D11 to D20 and E1 to E10 and E11 to E20 were assigned to those candidates for the interviews which were conducted on 27.11.2021, 29.11.2021 and 30.11.2021 respectively. It is also submitted that the said code numbers were assigned to all the candidates by following open draw system with a view to ensure that the identity of the candidates are not disclosed. On the basis of the marks obtained by each of the 101 candidates, final select list comprising of 23 candidates was declared on 02.12.2021.
4.6. Learned Advocate General would thereafter submit that the methodology adopted for recruitment in question is just, fair and legal. It is submitted that at each and every stage including the stage of oral interview of the candidates were provided equal opportunity. Thus, Articles 14 and 16 of the constitution of India have not been violated in any manner. It is further submitted that the submissions canvassed by learned advocate for the petitioners about change in the strength of the panel members and the change of composition is misconceived. It is submitted that it is nowhere stipulated that the candidates would be interviewed by particular number of panel members. Hence, in absence of any Rules or Regulations in that regard and more particularly with regard to the quorum of the panel members, the interview committee cannot be said to have committed any impropriety or acted arbitrarily in holding the Page 20 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 oral interview. It is further submitted that it is not the case of the petitioners that the change in the strength of the panel members was with any oblique motive. In fact the recruitment committee was conscious of the fact that looking to the other responsibilities, it may happen that some of the panel members remain absent and in view thereof the said aspect was taken note of in the meeting of recruitment committee, which was scheduled on 12.11.2021 and 23.11.2021.
4.7. Learned Advocate General, at this stage, has referred the averments made in para 7.1 and 7.2 of the affidavit-in-reply filed on behalf of respondent no.1.
4.8. Learned Advocate General thereafter referred to the tweets uploaded by Dr. Falguni Vasavada on Twitter. It is submitted that the said tweets are too general and while reading the same it cannot be said that the same is related to or connected with the present recruitment process.
4.9. Learned Advocate General thereafter would contend that once the petitioners have participated in the recruitment process and when they are not selected, they are estopped from taking all the aforesaid contentions with regard to the composition/ strength of the panel members of the interview committee.
4.10. Learned Advocate General has placed reliance Page 21 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 upon the following decisions:
(i) In the case of Shri Ishwar Chandra v.
Shri Satyanarain Sinha, reported in (1972) 3 SCC 383;
(ii) In Miss Arti Sapru v. State of J & K, reported in (1981) 2 SCC 484;
(iii) In Arun Kumar Modi v. State of Rajasthan, reported in 1974 SCC Online Raj 164;
(iv) In Ashokkumar v. State of Bihar, reported in (2017) 4 SCC 357; and
(v) In the case of State of Maharashtra v. Dr. Budhikota A Subbarao, reported in (1993) 3 SCC 71.
4.11. After referring to the aforesaid decisions, it is mainly contended that where there is no Rule or Regulation or any other provisions of fixing the quorum, the presence of the majority of the members would constitute a valid meeting. It is further submitted that in the present case also there is no rule which requires that viva voce test should be conducted by all the members of the interview committee sitting together as a body and it is for the recruitment committee to decide as to whether all the members there of would examine all the candidates sitting together as a body or whether some members thereof may discharge that function. It is further submitted that mala fides may be legal or factual but neither can be assumed or readily inferred and it requires strong evidence and unimpeachable proof. In the present case, the petitioners have assumed mala Page 22 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 fide in law without providing any material.
4.12. Learned Advocate General further submits that the decisions upon which the reliance is placed by learned counsel for the petitioners would not be applicable in the facts of the present case. Learned Advocate General, therefore, urged that the present petition be dismissed.
Arguments canvassed by learned counsel appearing for the private respondents
5. Learned Senior Advocate Mr. Shalin Mehta appearing for most of the private respondents has adopted the submissions canvassed by learned Advocate General. However, learned Mr. Mehta has submitted that there is no violation of any Rules, Regulations or Resolution, as alleged by the petitioners. Even there is no change in the composition and only quorum/strength changed on some of the days of interview. However, there is no rule which provides for a quorum of a particular members during the course of interview. On the contrary, in the meetings of the recruitment committee which were held on 12.11.2021 and 23.11.2021, they have contemplated certain aspects and observed that one or two members may not remain present on all the five days of interview because of their heavy work load. It is further submitted that Rule 4 of the Rules of 2020 read with Rule 2(b) of the said Rules empowers the recruitment committee to appoint interview committee and therefore when the recruitment committee has Page 23 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 appointed the interview board for conducting the interviews, it cannot be said that the said interview board/committee is appointed without any provision of law.
5.1. Learned Senior Counsel would further submit that the petitioners have not made any averment in the memo of the petition that Ms. Falguni Vasavada is not competent to be a member in the interview committee. Further the so-called tweets are too general in nature and in fact it is for the petitioners to establish that because of the said so-called tips given by one of the members any candidate is benefited.
5.2. Learned Senior Counsel submitted that the decisions upon which the reliance is placed by the learned counsel for the petitioners are not applicable to the facts of the present case. Learned Senior Counsel Mr. Mehta, therefore, urged that this petition be dismissed.
6. Learned advocate Mr. D. G. Chauhan and learned advocate Mr. N. S. Parmar have also adopted the submissions canvassed by learned Senior Advocate Mr. Shalin Mehta and urged that this petition be dismissed.
Discussion and findings
7. Having heard learned advocates appearing for the parties and having gone through the material placed Page 24 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 on record, it would emerge that on 21.01.2021, an advertisement came to be published for filling up 8 vacant posts of Deputy Director, Information, Class-I and 15 vacant posts of Assistant Director of Information (Journalism) Class-II. The petitioners submitted application pursuant to the aforesaid advertisement. The petitioners appeared in the preliminary examination along with other candidates which was conducted on 27.06.2021. The said preliminary examination was cleared by 396 candidates including the petitioners who were thereafter called for combined main examination conducted on 04.09.2021. After the main examination was over, a meeting of the Recruitment Committee came to be convened on 12.11.2021, wherein it was decided to call 137 candidates, who came to be shortlisted for having cleared the limit of cut off marks, for documents verification. Thereafter, once again, a meeting of the Recruitment Committee came to be convened on 23.11.2021, wherein, after scrutinizing the documents of 137 shortlisted candidates as well as cut off level thereof, it was resolved that 101 candidates would be called for oral interview. The petitioners were also called for oral interview. Both the petitioner Nos. 2 and 3 appeared before the concerned interview committee on 26.11.2021. The oral interviews of 101 shortlisted candidates were conducted by an open draw system on 25.11.2021 to 27.11.2021, 29.11.2021 and 30.11.2021 and thereafter the final selection list comprising of 23 candidates came to be declared on the basis of the marks Page 25 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 obtained by each of the 101 candidates.
8. The petitioners have filed this petition on 14.12.2021 and this Court, while issuing notice on 21.12.2021, made prima facie observation on the basis of the chart supplied by the concerned Assistant Government Pleader that strength of the interview committee changed during the course of oral interview and thereafter granted interim relief in favour of the petitioners.
9. It is pertinent to note at this stage that the present petition is not pressed by petitioner Nos. 1 and 4 and the petitioners have also not pressed relied prayed for in relief clause 6(d). Further, the petitioners have also not pressed the contentions with regard to wait list and the reservation policy.
10. It has been mainly contended by learned counsel appearing for the petitioners that composition and strength of interviewers kept on changing every day, as a result of which, the respondent authority has not provided equal opportunity, equal treatment and there was no uniform adjudgement at the time of conducting the interviews. Thus, the respondent authority has violated Articles 14 and 16 of the Constitution of India. Learned counsel also contended that there is no rule in the Rules of 2020 which empowers the Recruitment Committee to appoint interview board/committee for conducting the interviews. It is also contended that the Recruitment Page 26 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Committee is also not empowered to change the composition of the interview committee by permitting one or more members to remain absent during the course of interviews.
11. In order to appreciate the contentions raised by learned counsel appearing for the petitioners, relevant clause of G.R. dated 18.12.2015 issued by the State Government and relevant provisions of Rules of 2020 are required to be considered.
12. From the Government Resolution dated 18.12.2015, copy of which is placed on record at page 77 of the compilation, issued by the State Government, it is revealed that it has been resolved by the State Government to appoint Recruitment Committee for appointment on the posts of Deputy Director, Information, Class-I and Assistant Director of Information (Journalism) Class-II, consisting of five members, as follows:
(1) Additional Chief Secretary/Principal Secretary/Secretary, Information and Broadcasting Department (Chairman) (2) Information Commissioner, State of Gujarat, Gandhinagar (Member) (3) Additional Secretary/Joint Secretary/Deputy Secretary (Personnel), General Administration Department (Member) (4) Additional Secretary/Joint Secretary/Deputy Secretary Education Department (Looking Page 27 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 after a University)(Member) (5) Additional Secretary/Joint Secretary/Deputy Secretary, Information and Broadcasting Department, (Member Secretary)
13. Thereafter, while exercising powers under the proviso to Article 309 of the Constitution of India, the Information and Broadcasting Department framed Rules of 2020. The relevant Rules for considering the controversy read as under:
"2. Definitions._.....
(a) "Committee" means the recruitment committee appointed by the Information and Broadcasting Department;
(b) "Examination" means the combined competitive examination for recruitment to the posts specified in Schedule I and includes the Preliminary Examination, Main Examination and Interview as referred to in rule 5;
xxx xxx xxx
4. Conduct and Regulations of Examination.- The Committee shall regulate all matters relating to appointment of examiners and conduct of examination in accordance with the procedure adopted by it and in conformity with the Government's order in that behalf.
During the entire recruitment process, the committee shall strictly follow the rules, regulations and instructions issued by the Government in this behalf from time to time.
5. Mode of Examination.-(1) The examination shall be held in three successive stages, in Page 28 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 the following manner namely,-
(i) Preliminary Examination (Multiple Choice Question type) for selection of candidates for main Examination, and;
(ii) Main Examination (Conventional type Descriptive Written Examination), and;
(iii)Interview.
(2) The Preliminary Examination and the Main Examination shall be held in such manner as specified in Schedule II.
SCHEDULE I (See Rule 2(e)) Name of Posts
1. Class I Post
1. Deputy Director of Information, Class I
2. Class II Post
1. Assistant Director of Information (Journalism), Class II SCHEDULE II (see rule (6)) PLAN OF EXAMINATION Section:1 The Examination shall comprise of three Successive Stages:
(i) & (ii) xxx xxx xxx
(iii) Interview.- The Interview shall
carry total 100 marks without any minimum qualifying marks as shown in Section 4 of this Schedule. The marks obtained by the candidates in the Main Examination and Interview shall determine their final ranking.
xxx xxx xxx Section: 4 INTERVIEW - 100 Marks"
14. From Rule 2(a), it is clear that committee means the Recruitment Committee appointed by the concerned Department. Rule 2(b) provides for examination which means combined competitive examination for Page 29 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 recruitment to the posts specified in Schedule I and includes preliminary examinations, main examinations and interview as referred to in Rule 5.
15. If Rule 4 is carefully seen, it is revealed that the Recruitment Committee is empowered to regulate all matters relating to appointment of examiners and conduct of examinations in accordance with the procedure adopted by the said Committee.
16. Further, the conduct of examination i.e. the mode of examination is prescribed in Rule 5 which includes interviews. Thus, the Recruitment Committee is empowered to lay down the procedure for conducting the interviews.
17. Learned Advocate General has specifically contended that while exercising the powers under Rule 4, the Recruitment Committee has held a meeting on 12.11.2021 and in the said meeting, the Recruitment Committee constituted the interview board for taking oral interviews comprising of following members:
1 Chairman/Chairperson Secretary Information and Broadcasting Department 2 Member Director of Information 3 Representative of Deputy Secretary General Administration (Personnel), General Department Administration Department 4 Subject Expert-1 Shri V.S.Gadhvi (IAS Retd.) former State Chief Information Commissioner, Gujarat Information Commission Page 30 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 5 Subject Expert-2 Dr. Falguni Vasavada-Oza, Professor, Strategic Marketing, PR, Advertising Management, MICA 6 Member Secretary Joint Secretary, Information and Broadcasting Department
18. At this stage, it is the case of the respondent No.1 that while constituting the said interview board, the interview committee took cognizance of the fact that because of the other important responsibilities on the part of the Secretary, Information and Broadcasting Department, there may be possibility that the said member would not remain present and in view thereof, it was resolved that in absence of the said member the Chairman of the interview board would be in the following manner:
(i) Shri V. S. Gadhvi, (IAS Retd.) and former State Chief Information Commissioner, Gujarat Information Commission.
(ii) Director of Information.
19. At this stage, it is pertinent to note that in the meeting dated 12.11.2021, it was also decided that as a representative of General Administration Department, Deputy Secretary (Personnel) is appointed as one of the members in the interview board.
However, because of heavy workload, there are chances that the said member would not remain present during the course of interview and therefore in his place any other Deputy Secretary/Joint Secretary/Additional Page 31 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Secretary who knows about service related matters can remain present as a representative of GAD.
20. At this stage, it is required to be observed that thereafter another meeting of the Recruitment Committee was held on 23.11.2021 and in the said meeting it is once again decided that Deputy Secretary (Personnel), GAD can remain present as per his convenience at the time of interview. Minutes of the said meeting is placed on record at page 90 of the compilation and relevant clause No.10 of the said meeting is placed on record at page 99.
21. Now, the interview committee which has been appointed by the Recruitment Committee while exercising powers under Rule 4 of the Rules of 2020 by adopting the procedure for the purpose of interview, the said interview committee/board has conducted the interview for a period of five days. Now, it is the case of the petitioners that one of the members of the interview committee viz. Dr. Falguni Vasavada is an outsider and not connected with any Department of the State Government and therefore she could not have been appointed as one of the members in the interview committee.
22. Learned counsel Mr. A. J. Yagnik appearing for the petitioners also contended that in the G.R. dated 18.12.2015, Recruitment Committee of five members is constituted and all the five members are part of the interview board also except additional member Dr. Page 32 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Falguni Vasavada. However, if the members of the Recruitment Committee and the members of the interview board are carefully seen, it is revealed that the said submission made by learned counsel for the petitioners is not correct. In place of Additional Secretary/Joint Secretary/Deputy Secretary, Education Department, who is one of the members of the Recruitment Committee, one Mr. V. S. Gadhvi (IAS Retd.) and former State Chief Information Commissioner, Gujarat Information Commission, is appointed as an expert in the interview committee. Similarly, Dr. Falguni Vasavada is also an expert on the subject of journalism. Further, in the Recruitment Committee, one of the members is Information Commissioner, whereas in the interview board, one of the members is Director of Information. At this stage, it is pertinent to note that for the post of Assistant Director of Information (Journalism) Class-II for which interview was conducted, relates to the subject of Journalism and therefore when the expert is appointed as one of the members of the interview committee by the Recruitment Committee, this Court is of the view that Recruitment Committee has not committed any illegality while appointing the said member in the interview board.
23. Further, it is also contended by learned counsel for the petitioners that the said interview board was appointed while exercising powers under Rule 8(7) of the Rules, however, there is no such Rule 8(7) in the Rules of 2020 and there is no reference with regard Page 33 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 to Rule 4 in the minutes of the meeting. It is required to be noted that merely because the Recruitment Committee has referred wrong provision while exercising powers under the Rules of 2020, the proceedings cannot be vitiated. Fact remains that Rules of 2020 empowers the Recruitment Committee to regulate all the matters relating to appointment of examiners and conduct of examinations in accordance with the procedure adopted by it.
24. Thus, from the aforesaid observations, it is clear that the Recruitment Committee is empowered to appoint interview board including the experts for conducting the interviews. Thus, no illegality is committed by the Recruitment Committee.
25. Now the another contention of learned counsel appearing for the petitioners is that equal opportunity in public employment is not provided by the interview committee by not equally adjudging all the candidates who have participated in the interview process. It is contended that composition and the strength of the interview committee changed during the interview on different dates. At this stage, it is required to be noted that the petitioners have stated in the memo of the petition only with regard to variation in number of members who have taken interview on all the five days i.e. with regard to quorum/strength of the panelists. This Court would like to reproduce the averments made in para 2.5 and ground (E) taken in the memo of the petition which Page 34 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 read as under:
"2.5 It is stated and submitted that there is variation in the number of the members who have taken the interview on all the 5 days. The Panel on the 1st day comprised of:
* Vasant Gadhvi, Retd. Information
Commissioner
* D. P. Desai (Incharge, Director of
Information)
* K. L. Patel (Joint Secretary,
Information Department, Gandhinagar) * Falguni Vasavada, Professor, MICA. * Tejas Soni, Deputy Secretary, General Administration Department.
E. It is stated and submitted that the interview process was to go on for a period of 5 days. That on day 1 the panel comprised of 5 panelists. The corum did not remain consistent for the remainder 4 days. For example, on the 5th day, there were only 2-3 panelists in comparison to 5 panelists on day 1. The oral interview had a weightage of 100 marks. It can be assumed that on day 1 each panelist had the opportunity to mark a candidate out of 20 marks. However, on day 5 since there were only 2 panelists it seems that each panelist must have had the opportunity to mark the candidates out of 50. That in such a scenario Page 35 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 there is all likelihood of bias and partiality as in the event that there were 5 panelists the probability of bias wouldn't affect the marking much as the maximum weightage that a panelist could wield was only 20 marks. However, in the scenario when there were only 2 panelists, both panelists had a weightage of 50 marks each and therefore there is a possibility of discrimination, arbitrariness and favoritism. Therefore, the first argument is that the panel ought to have remained constant for the entire duration of 5 days. In alternate it is stated that one can assume that the members of the panel may not have remained constant on all 5 days but at least the strength ought to have remained the same. Reduction of the strength of the panelists smacks of malice, dishonesty and arbitrariness and on this ground also, this Petition deserves to be allowed."
26. Thus, the petitioners have not stated anything about the change of composition of the panelists. Therefore, in absence of any pleadings made in the memo of the petition with regard to the same, it is not open for the learned counsel appearing for the petitioners to make submission on that aspect at the time of arguments only. It is the specific case of the respondents in the affidavit-in-reply filed on behalf of respondent No.1 that it is nowhere stipulated that the candidates would be interviewed Page 36 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 by some number of panel members and hence in absence of any Rules or Regulations in that regard, more particularly, with respect to the quorum of the panel members, the interview board cannot be said to have committed any impropriety or acted arbitrarily in holding the oral interviews.
27. After the arguments are concluded, this Court asked learned Assistant Government Pleader to provide the original file with regard to the interview process conducted by the concerned interview board. From the original file provided by the learned AGP, it is revealed that there is no change in the composition of the panel members, as contended by learned counsel for the petitioners. The interview board consists of Mr. V.S.Gadhvi, Mr. D. P. Desai, Ms. Falguni Vasavada, Mr. K. L. Patel and Mr. Tejas H. Soni. The composition of the said committee remained same for all the five days. However, it is reflected that on some occasion i.e. on 25.11.2021 to 27.11.2021, except one member, all the other four members remained present. Even the fifth member also remained present for some time. On 29.11.2021, out of five members, three members remained present and on some occasion, remaining two members also remained present and on 30th November, 2021 also three members remained constantly present. One member remained absent for entire day and the fifth member remained present on some occasion. Thus, it appears that there was change in the quorum while taking interview but the composition remained the same.
Page 37 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022
28. In view of the aforesaid, it is not correct on the part of the petitioners to contend that equal opportunity, equal treatment and uniform adjudgement was absent and thereby the respondent authority has violated Articles 14 and 16 of the Constitution of India. Thus, the aforesaid contention is misconceived.
29. Another submission canvassed by learned counsel appearing for the petitioners is that as one of the members viz. Dr. Falguni Vasavada was regularly tweeting the updates of the examination by giving tips to the candidates and thereby there is always possibility that some candidates might approach such interviewer and pull string to influence such an interviewer and thus there is a malice in law and it was not open for the panel members to tweets on twitter and give advice to the candidates.
30. This Court has gone through the tweets which are placed on record at page 65 and 66 of the compilation. It is revealed that on 27 th and 29th November, 2021, the concerned member has tweeted on twitter. The said tweets are too general in nature. On the basis of the presumption that based on the said tweets it is contended that there is always a possibility that some candidates might approach the interviewer. When this Court has perused the original file, it is revealed that the said member did not remain present on 29th November, 2021 in 2nd sessions Page 38 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 and during entire day on 30th November, 2021. Thus, without any basis, the petitioners have made certain averments in the petition.
31. It is pertinent to note that the petitioners have participated in the interview process and thereafter when they could not succeed and after the result was declared, the present petition has been filed. It is well settled that the result of the interview test on merits cannot be successfully challenged by the candidates who takes a chance to get selected in the said interview and who ultimately find himself to be unsuccessful and such candidate is estopped from taking contention about the alleged illegality/irregularity committed at the time of interview.
32. Learned counsel for the petitioners has placed on record separate compilation on the point of estoppel. However, it is contended that the said decisions would not be applicable as the petitioners came to know about the change of composition/strength of the panel members after the interview was over. However, it is pertinent to note at this stage that in the memo of the petition, the petitioners have not at all stated about the same i.e. they came to know about variation in the number of members who have taken the interview on all the five days, after the interview process was over. Once again, it is required to be noted that the interview was over on 30th November, 2021 and thereafter final selection Page 39 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 list was published on 02.12.2021. Thereafter the petition is filed on 14.12.2021.
33. In the case of Ramjit Singh Kardam (supra), the Hon'ble Supreme Court observed in para 36 to 39 as under:
"36. The preposition that a candidate, who participates in a selection without a demur taking a calculated chance to get selected cannot turn around and challenge the criteria of selection and the constitution of the selection committee is well settled. The appellants have placed reliance on judgment of this Court in Madan Lal and Others Vs. State of J&K and Others, (1995) 3 SCC 486; K.A. Nagamani Vs. Indian Airlines and Others, (2009) 5 SCC 515; Manish Kumar Shahi Vs. State of Bihar and Others, (2010) 12 SCC 576; Madras Institute of Development Studies and Another Vs. K. Sivasubramaniyan and Others, (2016) 1 SCC 454 and Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357.
37. In Madan Lal and Others(supra), this Court laid down following in paragraph 9:-
"9. ............................It is now well settled 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. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, it has been clearly laid down by a Bench of three Page 40 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
38. The above preposition has been reiterated in other judgments of this Court noted above. In the present case, whether the respondents-writ petitioners are estopped from challenging the selection? While noticing the facts of the case, we have noted above that both appellants and the respondents had submitted applications in pursuance of advertisement dated 28.07.2006 No.6/2006. In advertisement, it was provided that the Commission may shortlist the candidates for interview by holding a written examination or on the basis of a rational criteria to be adopted by the Commission. The Commission on 28.12.2006 published the criteria for calling the candidates for interview. Notice dated 28.12.2006 provided that written examination shall be held for post of PTI on 21.01.2007, on 100 objective type multiple choice questions, each question carrying two marks. The notification also prescribed the minimum qualifying marks- 50% for General category, SC BC and ESM 45% and 25% marks was assigned to the viva voce. The above criteria was implemented and written examination was conducted on 21.01.2007, which examination was cancelled citing complaints regarding malpractices in the written examination. Further notice dated 11.06.2008 was published fixing 20.07.2008 for written examination as per criteria earlier notified. Before the above examination could take place, by public notice dated 30.06.2008, it was cancelled. Another public notice dated 11.07.2008 was published where Commission decided to shortlist eight times the candidates of the advertised post with minimum weightage secured in each category. The said shortlisting was also given up by notice dated 31.07.2009 when it was decided to call all eligible candidates for interview. Commission did not publish any criteria or marks on the basis of which interview Page 41 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 was to be held. The criteria, which was published by the Commission on 28.12.2006, 11.06.2008 and 11.07.2008 were given up step by step and no criteria was published for interview, which was scheduled to take place in from 2nd September to 17th October, 2008. When Commission had not published any criteria on the basis of which candidates were going to be subjected for selection process and the candidates participated in the selection without knowing the criteria of selection, they cannot be shut out from challenging the process of selection when ultimately they came to know that Commission step by step has diluted the merit in selection. When candidate is not aware of the criteria of selection under which he was subjected in the process and the said criteria for the first time is published along with final result dated 10.04.2010, he cannot be estopped from challenging the criteria of selection and the entire process of selection. Further when the written examination as notified earlier was scrapped and every eligible candidate was called for interview giving a go bye to a fair and reasonable process for shortlisting the candidates for interview, that too only by Chairman of the Commission whereas decision regarding criteria of selection has to be taken by Commission, the candidates have every right to challenge the entire selection process so conducted. This Court in Raj Kumar and Others Vs. Shakti Raj and Others, (1997) 9 SCC 527 held that when glaring illegalities have been committed in the procedure to get the candidates for examination, the principle of estoppel by conduct or acquiescence has no application. Referring to judgment of this Court's judgment in Madan Lal (supra), this Court laid down following in paragraph 16:-
"16. ................................................The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K, (1995) 3 SCC 486 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having Page 42 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
39. One more judgment of this Court which supports the view taken by the High Court is Bishnu Biswas and others Union of India and others, (2014) 5 SCC 774. An advertisement was published calling applications for appointment to the post of Group D staff. The Recruitment Rules only provided for a written examination having 50 maximum marks. After holding written examination notice was issued calling the successful candidates for interview. Although such interview was not part of the recruitment process, a select list was published which was challenged in the Tribunal. The Tribunal returned a finding that the manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The High Court upheld the reasoning of the Tribunal but modified the order to the extent of continuing the recruitment process from the point it stood vitiated. This Court laid down following in paragraphs 19 and 20:
"19. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50% for each. The Page 43 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while a large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so-called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago.
20. Thus, in the facts of this case the direction of the High Court to continue with the selection process from the point it stood vitiated does not require interference. In view of the above, the appeals are devoid of merit and are accordingly dismissed. No costs."
33.1. In Raj Kumar & Ors. (supra), the Hon'ble Supreme Court has observed in para 16 and 17 as under:
"16. Yet another circumstance is that the Government had not taken out the post from the purview of the Board, but after the examinations were conducted under the 1955 Rule and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the post were taken out from the purview thereof. thereafter the Selection Committee was constituted for selection of the condidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs. State of & K [(1995) Page 44 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, So also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case, thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action take by the Government are not correct in law.
17. The question then is: what would be the correct procedure under the law? Unfortunately, no outside candidate has questioned the selection of the candidates in the interview, In the light of what we have stated in the facts and circumstances, the appropriate and better course would be that SSSB Should call the names of all the candidates who were successful in the written examinations conducted between April 25 and April 28, 1992, inter view the candidates and select them in accordance with law laid down above. Since the appellants came to be appointed by virtue of the selection made, they would continue in service till the proper selection is made and the candidates are appointed in accordance with the Rules."
33.2. In Neelam Gupta & Ors. (supra), the J & K High Court has observed as under:
"Initially selection committee conducted the interviews of the some of the candidates and after the composition was changed some other candidates were interviewed. By changing the composition of the selection committee, merit of Page 45 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 the competing candidates which formed a class in itself was thus adjudged not by one single committee but by the two committees. The standards of adjudging the merit of the candidates, admittedly, got changed. There having been no uniformity in adjudging the merit of the competing candidates, the selection process was rendered arbitrary, violating the constitutional guarantees contained in Articles 14 and 16 of the constitution of India."
33.3. In the case of Siraj (supra), the Kerala High Court has observed in para 47 and 48 as under:
"47. Mr. Giri had presented an argument that on principles of estoppel, the petitioners had no right to challenge the notification, when they had responded thereto. An after thought of filing a Writ Petition, only when it was found that they could not get through the selection process, could not have been entertained. Adverting to certain decisions, the counsel contended that the discretionary jurisdiction, in the case, should not have been exercised, in favour of persons who were sitting on fence.
48. However, principles of estoppel as such might not be applicable in such matters. In the case of selection, option of an aspirant evidently is limited. If we accept the suggestions of the appellant, the candidate had to take a risk of abstaining from the selection and challenge it at the time of notification. This will be too rigid, not to say impractical, as an objection could be raised that a person who had not even responded to the selection had no locus standi. On this point, we are in agreement with the law laid down by a Division Bench of this Court in Sathi v. Cochin University of Science and Technology, 2000 (2) KLT 871. In appropriate cases, when a candidate finds that there was sufficient justification for him to challenge the process of selection, on grounds available to him, Page 46 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 participation in the selection as such would not have annulled his rights, since resort to constitutional remedies could not have been defeated or discarded. The observation contrary to the above principle in Remani's case has to be understood in the above background alone."
33.4. In the case of E.P.Royappa (supra), the Hon'ble Supreme Court has observed in para 85 as under:
85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challlenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of 14 and
16. Art. 16 embodies the fundamental guarantee that Arts. 14 as there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Art. 14. In other words, Art. 14 is the genus while Art 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose J., "a way of fife", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any ;attempt to truncate its all-embracing scope and meaning, for to do so Would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects Page 47 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action an( ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would :amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice : in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16."
34. The aforesaid decisions upon which the reliance is placed by learned advocate for the petitioners would not render any assistance to him in the facts of the present case. In fact in the case of Ramjit Singh Kardam and ors. (supra), the Hon'ble Supreme Court observed in para 40 as under:
"40. The Division Bench of the High Court is right in its conclusion that the selection criteria, which saw the light of the day along with declaration of the selection result could be Page 48 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 assailed by the unsuccessful candidates only after it was published. Similarly, selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result, hence, the writ petitioners cannot be estopped from challenging the selection. We, thus, hold that the writ petitions filed by the petitioners could not have been thrown on the ground of estoppel and the writ petitioners could very well challenge the criteria of selection applied by the Commission, which was declared by the Commission only at the time of declaration of the final result. We, thus, answer point Nos. 1 and 2 as follows:-
(i) The writ petitioners, who had participated in the selection are not estopped from challenging the selection in the facts of the present case.
(ii) The writ petitioners could have very well challenged the criteria of selection, which was declared by the Commission only in the final result declared on 10.04.2010.
34.1. Thus, from the aforesaid observations, it is clear that in the said case the selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result and therefore it was held that the writ petitioner cannot be estopped from challenging the selection. In the present case, as discussed hereinabove, the Rules of 2020 were notified before the interview. The said Rules were in public domain. Thus, the petitioners were aware about the same. and while exercising powers under Rule 4, the Recruitment Committee has formed the interview board consisting of six members. The petitioners participated in the interview and Page 49 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 thereafter when the result was declared, after a period of 10 days, they filed present petition. Thus, after participating in the interview, it is not open for the petitioners to raise aforesaid contentions.
35. In the case of Ashok Kumar and Another (supra), the Hon'ble Supreme Court has observed in para 13 and 19 as under:
"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar[5], this Court held that :(SCC p.107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission)."
xxx xxx xxx
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 Page 50 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment 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.
35.1. In the case of Shri Ishwar Chandra (supra), the Hon'ble Court observed in para 2 and 10 as under:
"2. It may at the outset be mentioned that the appointment of the Vice-Chancollor of the Saugar University is made by the Chancellor of that University under section 13 of the University of Saugar Act, 1946 (hereinafter referred to as "the Act") from 1 panel of not less than three persons recommended by the Committee constituted under sub-section (2) of that section. The Committee to be constituted under sub-section (2) was to consist of three persons, two of whom shall be elected by the Executive Council by single transferable vote from amongst persons not connected with the University or a College and the third shall be. nominated 'by the 'Chancellor who was, also empowered to appoint one of them as Chairman of the Committee. It is unnecessary to refer to other provisions of this section because these are not relevant for the purpose of this appeal. It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice-Chancellor for the University was duly constituted consisting of two persons elected by the executive Committee of the Page 51 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 University, namely, G. K. Shinde, Retired Chief Justice and Justice T. P. Naik of the Madhya Pradesh High Court while the third member Shri C. B. Agarwal Retired Judge of the, Allahabad High Court was nominated by tfie Chancellor, Rajmata Vijaya Raje Scindia who also appointed G. K. Shinde as the Chairman of the Committee. The Chairman thereafter appears to have carried on a correspondence to fix, a convenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of April 1970. Justice Naik was, however, unable to attend the meeting and in, his absence the other two persons, Shri Shinde panel of and Shri Agrawal met; as a Committee and submitteds names from which the Chancellor appointed the appellant on 7th April 1970 as a vice Chancellor with effect from 22nd June 1970 for, a period of five years. The appellant at the time of the appointment, it seems, was acting as Vice- Chancellor.
10. This letter clearly negatives the assumption in the High Court's order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was persued by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the Governor was influenced by the above correspondence. It is rather unfortunate that the appellant's Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delivered into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for Page 52 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid."
35.2. In the case of Miss Arti Sapru and Ors. (supra), the Hon'ble Supreme Court observed in para 14 as under:
"14. We are also told by the petitioner that the composition of the Interview Committee varied from time to time during the interviews. Therefore, it is said, the selection stands vitiated. It is alleged that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu joined the Committee some time after the interviews had begun, another member, Shri B.R. Kundal, Deputy Commissioner, Udhampur was present during a part of the proceedings only and left thereafter. In regard to Shri N.S. Pathania, it is not possible to say that his joining with a slight delay has materially affected the validity of the proceedings. And as regards Shri Kundal, it appears that he was present on the 14th July, 1980 and according to the petitioner, left on the morning of the next day. It will be noticed that all the members of the Committee except Shri Kundal were persons closely associated with medical education. Shri B.R. Kundal was Deputy Commissioner of Udhampur. We also do not know what was the mode of functioning employed by the Committee, whether it was such as to invalidate the proceedings if one of the members ex necessitas, was unable to participate throughout in them. The respondents maintain that at least three out of four members remained present Page 53 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 throughout the proceedings. And according to the petitioner, a proportionately small number only of the candidates was interviewed when Shri Kundal was present. In all the circumstances, we find it difficult to say that Shri Kundal's absence from the Committee vitiated its proceedings."
35.3. In the case of Arun Kumar Modi & Others, the Rajasthan High Court has observed as under:
"6. Mr M.B.L. Bhargava appearing for the petitioner Dr. Arun Kumar Modi and some others raised the following five contentions before me :
1 & 2) xxx xxx xxx
3) That the so called selection made by the Commission on account of which the termination of the services of the petitioners was made was no selection in the eye of law and it was a mere farce. These infirmities were mainly relied upon by the learned counsel in this respect, namely
(a) that the Commission as a body never assessed the comparative merits of all candidates, (b) the final list of the selected candidates was not prepared by the members of the Commission and was signed by the members thereof in a routine manner, (c) that two Selection Boards interviewed batches of candidates simultaneously and the composition of the said Boards was changed from litre to time and there was neither any common criteria for a consideration of the comparative merits of all the candidates.
xxx xxx xxx
22. It has been a gued by the learned counsel for the petitioners that the selection held by the Commission was a mere farce and could not be considered to be a selection in the eye of law.
According to the petitioners, the procedure employed by the Commission was that two Selection Page 54 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Boards were constituted, each one of them consisting of a member of the Commission, a representative of Medical & Public Health Department and two experts and both the Boards interviewed different batches of candidates simultaneously. The experts were taken from all branches of Medical Science including clinical and non-clinical and they used to change every now and then. The petitioners have alleged that the personnel of the Board differed and changed from time to time. The petitioners' grievance is that such a selection in which different members of t e Commission were assisted by different experts at different times could not be called a valid selection in the eye of law, as a just and fair appraisement of the comparative merits of all the candidates appearing in different batches could not be made. The allegation of the petitioners is that after the interviews of all the candidates were over the list of the candidates who were recommended for appointment to the State Government was not compiled by the members of the Commission. It was also alleged that the Commission, as a body never processed or approved the selection lists But the selection lists were compiled by the Secretary of the Commission and were forwarded to the State Government by him. The contention of he learned counsel for the petitioners is that the provisions of Rule 20 of the Service Roles were contravened inasmuch as it was the mandatory duty of the Commission to prepare the list of candidates they considered suitable and to arrange the list of such candidates in order of merit It is urged that the Commission in the present case delegated the aforesaid two essential functions and there was a virtual self- effacement by the Commission. It was lastly submitted that the members of the Commission signed the list in a routine manner and did not apply their mind.
xxx xxx xxx
24. There is no doubt that when the number of candidates to be interviewed is very large, as about 1100 candidates were to be interviewed by the Commission in these, cases it was to not Page 55 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 possible for all the members of the Commission to sit together as a body and interview each and every candidate. I have examined the relevant provisions of the Service Rules in this respect Rule 16 provides for inviting applications by the Commission which have to be made in the form approved by the Commission according to Rule 17. Then, under Rule 19, the Commission has to scrutinise the applications received by it and to require the candidates who are qualified for appointment under the Service Rules to appear for interview. There is nothing in Rule 19 to require that the viva voce test should be conducted by all the members of the Commission sitting together as a body. It is for the Commission therefore to decide as to whether all the members there of would examine all the candidates sitting together as a body or whether some members there of who may be nominated by the Commission for the purpose may discharge that function, Even in cases where written tests, are conducted and the numbers of candidates to be examined normally is very large, the scripts are divided between a Head Examiner and such number of co-examiners as may be considered proper, keeping in view the number of candidates to be examined, for it may be physically impossible for a single examiner to scrutinise the scripts of all the candidates then a very long time may be required for a single person to examine all the scripts, if the candidates are too many. Even in the University examinations and also in competitive examination where a large number of candidates appear the aforesaid procedure is adopted, yet uniformity of standard is normally ensured Now in this matter, the Commission nominated two of its members who acted as Presiding Officers of two Selection Boards and each one of them was assisted by a departmental representative and two experts, and in order to maintain the uniformity of standard the Presiding Officers, departmental representatives and the Experts held combined meetings in the beginning before the selections started and from time to time during the course of the selection. Thus, I am not at all impressed with the argument of the learned counsel for the petitioners that the selections conducted by the Page 56 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 Commission were vitiated because the Commission as a body did not interview all the candidates or as uniform criterion was not applied in the matter of selection. In K.K Bhatia's case 1972 RLW 22 a similar question arose and this Court took the view that there was no provision either in Article 320 of the Constitution or in the relevant Service Rules which required that the viva (sic) examination must be conducted by all the members of the Commission sitting together at the interview. It was further held in that case that "it was for the Commission to decide whether all its members would examine the candidates sitting together or whether that responsibility would be discharged by some of the member nominated by it for the purpose". The same view has been taken by the Assam and Nagaland High Court in Devji Chaliha's case AIR 1967 SC where it was observed as under:
Besides, conducting of an interview for recommending certain candidates for appointment on the ground of suitability, need not require the presence of all the members of the Commission. Any one or two members may be entrusted with the duty in absence of any rules to the contrary This is an internal working of the Commission which is a highly responsible body and can be trusted to discharge their duties with due regard to high propriety and fairness to all concerned We are, therefore, clearly of the opinion that the interview conducted by the Chairman and another Member in the case of the petitioner is not without jurisdiction, nor is the recommendation as a result of that interview can be said to be invalid under the law. We have not been shown any rules which debar the Commission to work in compartments while interviewing candidates for appointment.
25. The contention of Mr. Bhargava that the composition of the Selection Boards charged horn time to time and as such the selections were a farce, cannot also be accepted. The experts and departmental representative did not take part in the interviews as examiners but they were only assisting members of the Commission as the interviews were held for the purpose of examining Page 57 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 candidates for recruitment to a technical service. At the request of the learned counsel for the petitioners I had called for the relevant record from the Commission and on a perusal there of I feel satisfied that the selections were properly conducted One of the Selection Boards was headed by Mr R.S. Kapoor, who was then a member of the Commission, while the other Selection Board was headed by another member of the Commission Mr. Mohammed Yakub. Proper assessment lists appear to have been prepared at the time of interview and the candidates were assigned grades according to their performances at the interview, while their qualifications were duly mentioned against their names and appear to have been given due consideration. The assessment lists were signed by the respective members of the Commission who presided over the Selection Boards and thereafter a combined list of the selected candidates in order of preference was prepared and was signed by both the members, Mr. R.S Kapoor and Mr. Mohammed Yakub and was placed before the other members of the Commission. The other members of the Commission including the Chairman appear to have agreed with the aforesaid members and all the members of the Commission signed the final list of selected candidates and thereafter the said list was forwarded to the State Government The principles employed for the determination of comparative merit were the same as are normally employed by the Commission in all selections when a large number of posts of the same category are advertised. There is no basis for the allegations made by the petitioners that the composition of the Boards changed from time to time inasmuch as the two members of the Commission, who acted as the examiners there remained throughout the entire course of selections and the mete change of experts, who were associated with the Selection Boards only for the purpose of assisting the examiners concerned was of no consequence. As the selections were made for the post of Civil Assistant Surgeons, experts from both the clinical as well as non-clinical wings were called for assistance of the Commission. As it was not necessary for the Commission as a body to interview each and every candidate there was Page 58 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 nothing wrong if two selection boards worked simultaneously in view of the fact that the number of candidates to be intervieved was about 1100 and 6uch as enormous task would have taken a single selection board several months to complete. I find no force in the contention of the learned counsel for the petitioners that there was no common criterion, in view of the averments made by the Commission that uniformity of standard was maintained by holding combined meetings of the members of the Commission, departmental representatives and the experts from time to time."
35.4. In the case of Dr. Budhikota Subbarao (supra), the Hon'ble Supreme Court observed in para 7 as under:
"7.Mala fides violating the proceedings may be legal or factual. Former arises as a matter of law where a public functionary acts deliberately in defiance of law without any malicious intention or improper motive whereas the latter is actuated by extraneous consideration. But neither can be assumed or readily inferred. It requires strong evidence and unimpeachable proof. Neither the order passed by the learned Single Judge granting ex parte order of stay preventing opposite party from going abroad was against provisions of law nor was the State guilty of acting mala fides in approaching the learned Single Judge by way of writ petition. The order of the trial Judge could not be challenged before the Division Bench. Under the rules of the Court, the correctness of, the order could be assailed only in the manner it was done by the State. Any party aggrieved by an order is entitled to challenge it in a court of law. Such action is neither express malice nor malice in law."
36. Thus, from the aforesaid decisions upon which reliance is placed by learned Advocate General, it is clear that for one reason or the other if one of the Page 59 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 panel members could not attend, that does not make the meeting/interview of others illegal. In such circumstances, when there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and the matters considered in such meeting cannot be held to be invalid. It is also clear that if one or two members of the committee could not remain present in the meeting the proceedings cannot be vitiated. It is further revealed from the decision rendered by Rajasthan High Court that in the concerned rule there is nothing which requires that viva voce test should be conducted by all the members of the Commission sitting together as a body. It is for the Commission therefore to decide as to whether all the members there of would examine all the candidates sitting together as a body or whether some members there of who may be nominated by the Commission for the purpose may discharge that function. It is further revealed from the decision rendered by the Hon'ble Supreme Court in the case of Dr. Budhikota Subbarao (supra) that mala fides may be legal or factual but neither can be assumed or readily inferred and it requires strong evidence and unimpeachable proof.
37. As observed hereabove, before the interview process commenced, the recruitment committee held a meeting on 12.11.2021 wherein interview board was constituted consisting of six members and it has been also observed that if a particular member does not Page 60 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 remain present in the meeting, the remaining members can conduct the interview. Thereafter also a meeting was held on 23.11.2021 in which also it has been specifically observed that if the Deputy Secretary (Personnel) GAD is not in a position to remain present, it is open for him to remain absent during the course of interview looking to the workload of the said post. Thus, the procedure was prescribed by the recruitment committee and the said procedure was throughout followed during the course of interview on all the five days. Further, from Section 4 of Schedule II of the Rules of 2020, it can be said that the said section provides for interview of 100 marks. It is not specifically stated in the said Section that interview is to be conducted by a particular number of members. Thus, in absence of any rule providing for quorum of the panel members and in view of Rule 4 of the Rules of 2020 when the recruitment committee has adopted the procedure, this Court is of the view that the contentions raised by the petitioners in the present petition with regard to violation of Articles 14 and 16 of the Constitution of India are misconceived. In the present case, this Court does not find any arbitrariness on the part of the Recruitment Committee or any members of the interview board/committee, as alleged by the petitioners and therefore this Court is of the view that there is no violation of Articles 14 and 16 of the Constitution of India.
38. Learned advocate for the petitioners has placed Page 61 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 reliance upon the interim order dated 21.12.2021 passed by this Court in present petition. However, it is required to be noted that while granting ad- interim relief, the Coordinate Bench of this Court has made certain prima facie observations on the basis of the averments made in the memo of the petition. However, affidavit-in-reply was not filed by the respondent - State. However, the said observations are tentative in nature while issuing notice and granting ad-interim relief. Now, this Court has considered the reply filed by the respondent - State and also considered the submissions canvassed by learned advocates appearing for the parties in detail and therefore reliance placed by learned counsel for the petitioners on an interim order is misconceived.
39. In view of the aforesaid discussion, the petition lacks merit deserves to be dismissed and accordingly stands dismissed. Rule discharged. Ad- interim relief stands vacated. In view of dismissal of the petition, connected civil application does not survive, accordingly stands disposed of.
(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI After the judgment is pronounced, learned advocate appearing on behalf of learned advocate Mr. A. J. Yagnik for the petitioners requested that the ad-interim relief granted by this Court, while issuing notice, which is continued from time to time, be extended for a further period of four weeks so Page 62 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022 C/SCA/19294/2021 JUDGMENT DATED: 06/05/2022 that the petitioners can approach before the higher forum.
Learned advocates appearing for the respondents vehemently objected to the said request by contending that the recruitment process is put on hold during the pendency of this petition and when this Court has dismissed the petition, now the ad-interim relief granted by this Court may not be extended.
In view of the reasons recorded by this Court in the order, request made by learned advocate for the petitioners is rejected.
(VIPUL M. PANCHOLI, J) SRILATHA Page 63 of 63 Downloaded on : Fri May 06 21:37:49 IST 2022