Calcutta High Court (Appellete Side)
Md. Zakir Hossain And Ors vs The State Of West Bengal And Ors on 18 February, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT :
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Bibek Chadhuri
WPST 99 of 2018
Md. Zakir Hossain and ors.
vs.
The State of West Bengal and ors.
For the petitioners : Mr. Bratindra Narayan Roy, Advocate
Mr. Malay Ghosh, Advocate.
For the respondents: Mr. Sirsanya Bandyopadhyay, Jr. Standing Counsel
Mr. Arka Kumar Nag, Advocate.
Heard on : January 3, 2019,
Judgment on : February 18, 2019.
DIPANKAR DATTA, J:-
1. An advertisement dated January 1, 2017 was issued inviting online applications
for recruitment to Group-D posts in various offices of the State Government. It
would appear from such notice that 6,000 vacancies were sought to be filled up
in the manner as follows:
Sl. Category (Sub-category) No. of vacancies
No
1. Unreserved (UR) 2742
2. Unreserved (E.C.) 381
3. Unreserved (ESM) 179
4. Schedule Caste 1165
5. Schedule Caste (E.C.) 63
6. Schedule Caste (ESM) 25
7. Schedule Tribe 336
8. Schedule Tribe (E.C.) 20
9. Schedule Tribe (ESM) 09
10. OBC-A 548
11. OBC-A (E.C) 28
12. OBC-A (ESM) 10
13. OBC-B 380
14. OBC-B (E.C) 21
15. OBC-B (ESM) 12
16. PWD (UR) 74
17. MSP (UR) 7
TOTAL 6000
While E.C. in the above cage denotes "Exempted Category", ESM denotes "Ex-
serviceman".
2. Being in search of public employment, the six petitioners before us submitted
their applications online and offered their candidature for consideration.
Incidentally, the first petitioner belongs to OBC (E.C.) and is also a person with
disability, the second and the sixth petitioners belong to OBC-A, the third
petitioner belongs to OBC-B, and the fourth and the fifth petitioners are Schedule
Caste candidates.
3. The online applications submitted by the petitioners were found to be in order
and they were issued admit cards calling upon them to participate in a written
examination for which 85 marks were earmarked. After having participated in the
written examination, conducted on May 14, 2017, the first petitioner submitted a
representation dated June 7, 2017 before the Chairman, West Bengal Group 'D'
Recruitment Board (hereafter 'the Board') complaining that the reservation policy
had not been duly adhered to resulting in there being real likelihood of the
reserved categories losing out on appointment. The main contention of the first
petitioner was that vacancies which should have been earmarked for OBC-A
(E.C.), OBC-B (E.C.), OBC-A, OBC-B and PWD (UR) had not been appropriately
earmarked and that such of the vacancies, which ought to be filled up by
reserved candidates, had been thrown open for being filled up by un-reserved
candidates. The Chairman of the Board did not respond, resulting in the first
petitioner along with the others presenting an application under section 19 of the
Administrative Tribunal Act, 1985 before the West Bengal Administrative
Tribunal (hereafter 'the tribunal') on August 3, 2017. In such application, the
petitioners, inter alia, prayed for the following relief:
"a) Order directing the respondents to forthwith Review and Recast the
vacancy position declared in respect of respective categories in accordance
with Reservation Policy, Statutory Acts and Rules framed in maintaining
reservation and in accordance with Model 100 Point Roster as framed in the
matter of selection and offering employment in the Recruitment process,
2017 as initiated for the post of Group 'D' in various offices under West
Bengal Government;
b) Direct the Respondent to declare due vacancies for the respective
categories in respect of Recruitment process, 2017 for the post of Group-'D'
staffs under the State of West Bengal in accordance with the Reservation
Policy, statutory Rules framed in this regard and as per Model 100 Point
Roster framed in this regard;"
In paragraph 6 (19) of the application, the petitioners specifically pleaded that the
result of the written examination had not been published but the same was in
process.
4. The original application of the petitioners came to be registered as OA 723 of
2017 and was taken up for consideration along with OA 943 of 2017 (Pranab Ray
and anr. vs. State of West Bengal and ors.).
5. Learned advocate representing the State of West Bengal before the tribunal
contended that there was no error in calculation of vacancies to be filled up by
the reserved candidates. Such submission was adopted by the learned advocate
representing the Board. Both of them, however, contended that the petitioners
having participated in the selection process consciously and they having been
unsuccessful in their attempt to secure public employment, cannot challenge the
selection process.
6. The tribunal decided the question of maintainability first and upheld the
objection raised by the learned advocates for the respondents. By a judgment
delivered on August 16, 2018, the tribunal dismissed the original applications.
7. The soundness of the said judgment of the tribunal is under challenge in this
writ petition.
8. The question arising for decision on the factual matrix of the case before the
tribunal was recorded in the impugned judgment, reading as follows:
"It is an admitted position that on January 1, 2017 an advertisement was
issued for recruitment to Group 'D' posts. Therein it was notified that there
are 6,000 vacancies out of which 513 seats are reserved. The applicants had
applied for the post. Admit cards were issued. The applicants participated in
the selection process. It appears that after being unsuccessful they have
challenged the selection process by filing the Original applications
particularly with regard to reservation of vacancies (underlining for
emphasis by us). The question is after participating in the selection process
are they entitled in law to challenge the said process".
9. It appears on a further reading of the impugned judgment that the tribunal
considered various decisions of the Supreme Court and took note of what, in the
view of the tribunal, was the settled position of law. Applying such law, it
proceeded to dismiss the original applications. We quote below a relevant
paragraph from the impugned judgment recording the same:
"Therefore, the settled position of law is that a candidate, aware of the
stipulations and norms of recruitment process, participating in a selection
process, after being unsuccessful in the selection process, cannot turn
round and challenge the said process".
10. Mr. Roy, learned advocate appearing for the petitioners vehemently contended
that the tribunal was in gross error in appreciating the factual matrix of the case
as pleaded in OA 723 of 2017. Although it is true that the petitioners had
approached the tribunal after participating in the written examination, the result
of such examination had not been declared and the tribunal erroneously
assumed that the petitioners, after being unsuccessful in the written
examination, had approached it. According to him, the respondents are bound to
follow the policy of reservation and any deviation in this regard would amount to
breach of the constitutional norms and principles in relation to reservation. The
respondents not having earmarked appropriate number of vacancies in terms of
the 100 point roster, the process is glaringly illegal and mere participation in
such process by the petitioners without anything more did not lead to a forfeiture
of their right to question the process before the tribunal. Referring to the decision
of the Supreme Court reported in (1997) 9 SCC 527 (Raj Kumar v. Shakti Raj), it
was contended that the case at hand was a more glaring instance of illegality as
compared to the illegality found in Raj Kumar (supra) and, therefore, the
principle of estoppel by conduct, waiver and acquiescence would have no
application. He, accordingly, prayed for an order setting aside the judgment of the
tribunal and for an order of remand to hear the parties on the merits of the
controversy raised.
11. Per contra, Mr. Bandyopadhyay, learned Junior Standing Counsel appearing for
the respondents contended that the impugned judgment of the tribunal does not
suffer from any infirmity warranting interference by this Court. While conceding
that the results of the written examination had not been published by the time
the petitioners approached the tribunal, it was submitted by him that the results
had been declared during the pendency of the original application and the fact
that the tribunal had referred the petitioners as unsuccessful candidates must be
understood in the light of the development subsequent to presentation of the
original application. It was his categorical contention that the petitioners took a
calculated chance of selection and having not objected to the manner of
reservation of vacancies as shown in the notice dated January 1, 2017 prior to
their participation in the written examination, it ought to be held that they had
waived their right to question the process before the tribunal. While praying for
dismissal of the writ petition, Mr. Bandyopadhyay relied on decisions of the
Supreme Court, which the tribunal referred to in the impugned judgment.
12. We have heard the parties and considered the decisions that the tribunal did and
did not consider.
13. The passage from the impugned judgment, extracted in paragraph 8 (supra),
clearly reveals the tribunal's finding of fact that the petitioners "after being
unsuccessful", had "challenged the selection process" by filing the original
application questioning the reservation of vacancies. This being the perception of
the tribunal as regards the point of time when the original application was
presented before it, obviously it drifted away from the main issue and proceeded
to apply the law laid down in the decisions of the Supreme Court, mention of
which we find in its impugned judgment.
14. We have no hesitation to hold that the tribunal erroneously perceived the
petitioners to be unsuccessful candidates who had approached it upon the
results of the written examination not being palatable to them.
15. Recording this finding alone, we could have remitted the matter to the tribunal
for fresh decision but before doing so, we consider it proper to deal with the
decisions of the Supreme Court that weighed with the tribunal to hold that the
original application was not maintainable. We may observe here that in course of
hearing other writ petitions arising out of judgments and orders passed by the
tribunal, we have found dismissal of original applications being resorted to on
application of the law laid down in such decisions almost mechanically without
even considering the nature and extent of illegality in the process of selection
complained of and its effect on the administration of justice in public service. It is
not that administering justice is the exclusive prerogative of the judiciary; under
the Constitution it is also the duty of the executive to administer justice within its
sphere. If the executive fails in its duty, it is for the tribunals to set the wrong
right. At times, the tribunal has been remiss necessitating the further opinion
that follows.
16. We wish to examine now the factual matrix and the law laid down by the
Supreme Court in each of the decisions on the point that was placed before the
tribunal for its consideration. In so examining, we start with the oldest decision.
A. 1986 Supp SCC 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla) : The
challenge before the Supreme Court was to the decision of the High Court of
Allahabad whereby, while allowing a writ petition of the first respondent, it
quashed the results of the competitive examination held by the District Judge of
Kanpur in September, 1981 for selecting candidates for appointment to the
vacancies in Grade III of the ministerial staff in the subordinate courts in the
district of Kanpur. There were Rules framed in 1947, 1950, 1969 and 1975. It
was after the promulgation of the 1975 Rules that the competitive examination,
with which the Supreme Court was concerned, was held by the District Judge of
Kanpur. The said examination was, however, held in September, 1981 in
accordance with the 1950 Rules and its results were announced on July 25,
1983. The 1969 Amending Rules were not, however, followed. The first
respondent and many others appeared in the said examination. But he was
ultimately not successful. Aggrieved by the result of the examination, he filed the
writ petition before the High Court of Allahabad. His principal contention before
the High Court was that the competitive examination which had been held in
accordance with the 1950 Rules was an unauthorised one and that it should
have been held in accordance with the 1947 Rules, as amended by the 1969
Amending Rules. The High Court was of the view that since within the judgeship
of Kanpur the examination had not been held in accordance with the syllabus
prescribed by the 1947 Rules, as amended by the 1969 Amending Rules, all
those who were successful and selected for appointment had no legal right to be
appointed. It, accordingly, quashed the examination held in 1981 by the District
Judge of Kanpur, the results of which had been announced in 1983, by its
judgment dated April 12, 1985. The High Court clarified that all the candidates
who had applied for the 1981 examination were, however, entitled to appear for
the fresh examination to be held by the District Judge of Kanpur. It further
observed that in the other districts of Uttar Pradesh where examinations had
been held under the 1950 Rules and which had not been challenged, the
selection and appointment made in pursuance thereof should be treated as valid
and would not be rendered invalid on the ground that any other view would
cause great hardship "which will not be in the public interest". The result of the
judgment was that only those who had been selected or appointed on the basis of
the competitive examination held by the District Judge, Kanpur lost their
appointments or the right to be appointed but all other candidates who had been
selected on the basis of examinations held in accordance with the 1950 Rules in
the rest of the State of Uttar Pradesh continued in their posts. Upon hearing the
parties, the Supreme Court held that the 1950 Rules were operative even in the
year 1981 and hence, the examinations held according to them cannot be held to
be bad. It was thereafter that the Court, providing an additional reason to reverse
the judgment impugned, had the occasion to observe in paragraph 24 as follows:
"24. Moreover, this is a case where the petitioner in the writ petition should
not have been granted any relief. He had appeared for the examination
without protest. He filed the petition only after he had perhaps realised
that he would not succeed in the examination. The High Court itself has
observed that the setting aside of the results of examinations held in the
other districts would cause hardship to the candidates who had appeared
there. The same yardstick should have been applied to the candidates in
the district of Kanpur also. They were not responsible for the conduct of
the examination."
It is manifest from the above extract why the Supreme Court interfered with the
judgment of the High Court. Primarily, the Court intended that all candidates
who had taken the competitive examination, which was conducted in accordance
with the 1950 Rules, be treated alike : candidates hailing from only one district
may not be treated differently. Appearance in the examination by the first
respondent without raising any protest was only assigned as an additional
reason.
B. (1995) 3 SCC 486 (Madan Lal v. State of J&K) : Under challenge before the
Supreme Court was the process of selection of Munsifs in the State of Jammu
and Kashmir undertaken by the Jammu and Kashmir Public Service Commission
pursuant to an advertisement notice. Written test was followed by viva voce. The
Commission prepared a select list of twenty successful candidates in the order of
merit on the basis of the aggregate of marks obtained by them in written as well
as viva voce test. The main contention of the petitioners was that viva voce test
was so manipulated that only preferred candidates, by inflating their marks in
the viva voce test, were permitted to get in the select list. Prior to dealing with the
first contention raised on behalf of the petitioners, recorded in paragraph 8 of its
decision, the Supreme Court held in paragraph 9 as follows:
"9. Before dealing with this contention, we must keep in view the salient fact
that the petitioners as well as the contesting successful candidates being
respondents concerned herein, were all found eligible in the light of marks
obtained in the written test, to be eligible to be called for oral interview. Up
to this stage there is no dispute between the parties. The petitioners also
appeared at the oral interview conducted by the Members concerned of the
Commission who interviewed the petitioners as well as the contesting
respondents concerned. Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only because they did not
find themselves to have emerged successful as a result of their combined
performance both at written test and oral interview, they have filed this
petition. 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 it has been clearly laid down by a Bench of three 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."
We would read this decision to be an authority for the proposition that
unfairness of interview process cannot be challenged by any candidate who takes
a chance of selection and appears before the interview board and ultimately,
comes out unsuccessful. Although Om Prakash Shukla (supra) was applied, the
controversy emerging for decision in the two cases were quite different.
C. (2002) 6 SCC 127 (Chandra Prakash Tiwari v. Shakuntala Shukla) : Challenge
to promotion of police officers from the rank of Sub-Inspector to Inspector in the
State of U.P. in 1997, for vacancies arising between 1992 and 1996, emerged for
consideration. The core question arising for consideration was noted in
paragraph 4 of the decision reading as follows:
"Whether the selection as effected was to be made under the specific police-
related order of 5-11-1965 or the basis of seniority under the General U.P.
Government Servants (Criterion for Recruitment by Promotion) Rules, 1994
framed under Article 209 of the Constitution?"
While allowing the appeal and reversing the decision of the relevant High Court,
the Supreme Court held that while the doctrine of estoppel by conduct may not
have any application, that does not bar a contention as regards the right to
challenge an appointment upon due participation at the interview/selection. The
decision in Om Prakash Shukla (supra) was referred to and the law laid down
therein was applied. After referring to the decision in Madan Lal (supra), the
Court observed at paragraph 34 as follows:
"34. There is thus no doubt that while question of any estoppel by conduct
would not arise in the contextual facts but the law seems to be well settled
that in the event a candidate appears at the interview and participates
therein, 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 there was some lacuna in the process."
This decision, therefore, does not acknowledge that the principle of estoppel by
conduct would be attracted by a candidate's mere appearance at the
examination. Result of a recruitment examination, if not palatable to an aspiring
candidate, cannot give rise to a right of action is the law laid therein.
D. (2007) 8 SCC 100 (Union of India v. S. Vinodh Kumar) : It would appear that
by the decision under challenge, vacancies meant for reserved category were
directed to be filled up by general candidates and the cut-off marks were directed
to be lowered. The rival contentions were summarized in paragraphs 7 and 8 of
the decision. Paragraph 34 of Chandra Prakash Tiwari (supra) was quoted in the
decision and other decisions, viz. (1991) 3 SCC 368 (Munindra Kumar v. Rajiv
Govil) and (2006) 12 SCC 724 (Rashmi Mishra v. M.P. Public Service
Commission) were referred to where the same principle was laid down that an
unsuccessful candidate has no right to challenge a process of selection after
finding the result not palatable. In paragraph 20, however, the Bench
acknowledged that "there are certain exceptions to the aforementioned Rules", but
the Bench was not concerned therewith.
It is, therefore, abundantly clear that there exist exceptions to the rule which,
however, were not spelt out. We shall attempt to cull out the exceptions little
later.
E. (2009) 3 SCC 227 (Amlan Jyoti Borooah v. State of Assam and ors) : An
advertisement was issued by the State of Assam for filling up 112 vacancies of
Sub-Inspectors by direct recruitment. The advertisement mentioned that those
candidates who qualify in the written test would be required to appear in
physical test and interview. The advertisement further mentioned that the
candidates were to appear in the written test, physical test and interview at their
own expenses. A written test was held on April 26, 1998 and the candidates who
had obtained 40% or more marks were called for interview. It was mentioned in
the call letter that in case a candidate was selected in the interview, he would be
called for physical test for final selection. Based on this selection method, the
respondent State made appointments of 169 candidates sometime around July 4,
2000. The issue involved was whether it was obligatory for the respondent State
to conduct selection in the order mentioned in the advertisement, namely, written
test, then physical test and then interview, or the State could change the order of
selection by holding written test, then interview followed by physical test. The
Supreme Court held that the selection process should have been conducted in
the order mentioned in the advertisement but it did not interfere with the
selection already made, because the appellant had subjected himself to a faulty
selection process without questioning it. It was also held that the appellant
having accepted the change in the selection procedure sub-silentio by not
questioning the appointment of 169 candidates, cannot now be permitted to
contend that the procedure adopted was illegal; he is estopped and precluded
from doing so.
It would, thus, appear from the above that acceptance of change in the selection
procedure by the appellant, subjecting himself to a faulty process of selection and
his omission to assail the appointment of 169 candidates were the prime reasons
for dismissal of the appeal.
F. (2010) 12 SCC 576 (Manish Kumar Shahi v. State of Bihar and ors.) : The
process there pertained to selection of Civil Judges (Junior Division) for
recruitment to the Bihar Civil Services (Judicial Branch). The process comprised
of a written examination and a viva voce, for which 850 and 200 marks
respectively had been earmarked. The petitioner before the Supreme Court
knowing fully well that more than 19% marks had been earmarked for the viva
voce, took the written examination. He approached the High Court only when his
name did not figure in the merit list prepared by the Bihar Public Service
Commission. The Supreme Court held that earmarking 200 marks for viva voce
as against 850 marks for written examination did not violate the doctrine of
equality embodied in Articles 14 and 16 of the Constitution. In addition, the
Court held that having taken part in the selection process knowing fully well that
more than 19% marks had been earmarked for viva voce, the petitioner was not
entitled to challenge the criteria or process of selection. The conduct of the
petitioner in approaching the High Court after finding that his name does not
figure in the merit list prepared by the Commission clearly disentitled him from
questioning the selection and the High Court did not commit any error in
refusing relief while dismissing the writ petition.
Knowledge of the petitioner that as high as 19% marks being earmarked for the
viva voce, led the Court to hold that he is not entitled to any relief having taken a
chance of selection.
G. (2013) 11 SCC 309 (Ramesh Chandra Shah v. Anil Joshi) : An advertisement
was issued inviting applications for appointment on the post of physiotherapist.
Candidates who failed to clear the written test presented a writ petition and
prayed for quashing the advertisement and the process of selection. They pleaded
that the advertisement and the test were ultra vires the provisions of the Uttar
Pradesh Medical Health and Family Welfare Department Physiotherapist and
Occupational Therapist Service Rules, 1998. A learned Judge of the High Court
overruled the objection that the challenge was not maintainable after
participation in the selection process on the ground that the process was vitiated
due to patent illegality and, in such a case, the principle of waiver cannot be
invoked for non-suiting the writ petitioners. Referring to the decision in Om
Prakash Shukla (supra), Madan Lal (supra), Manish Kumar Shahi (supra) and
certain other decisions, the Supreme Court held in paragraph 24 as follows:
"24. In view of the propositions laid down in the above noted judgments, it
must be held that by having taken part in the process of selection with full
knowledge that the recruitment was being made under the General Rules,
the respondents had waived their right to question the advertisement or
the methodology adopted by the Board for making selection and the
learned Single Judge and the Division Bench of the High Court committed
grave error by entertaining the grievance made by the respondents."
Here also, knowledge of a faulty process was held to be fatal for the respondent.
H. (2014) 10 SCC 521 (Chandigarh Administration and anr. v. Jasmine Kaur v.
ors.) : The matter pertained to admission to medical courses. It was held therein
that if any candidate had any grievance with regard to the eligibility from the very
first day when the prospectus was issued, he/she cannot fix his/her own time
limit for approaching the Court which would show total lack of diligence in
his/her decision to work out remedies in the Court of law. While noticing Madan
Lal (supra) as well as Om Prakash Shukla (supra), the Court discerned several
principles of which the following are relevant for the present discussion :
"33.4. When a candidate does not exercise or pursue his/her rights or legal
remedies against his/her non-selection expeditiously and promptly, then
the courts cannot grant any relief to the candidate in the form of securing
an admission.
33.5. If the candidate takes a calculated risk/chance by subjecting
himself/herself to the selection process and after knowing his/her non-
selection, he/she cannot subsequently turn around and contend that the
process of selection was unfair.
33.6. If it is found that the candidate acquiesces or waives his/her right to
claim relief before the court promptly, then in such cases, the legal maxim
vigilantibus et non dormientibus jura subveniunt, which means that equity
aids only the vigilant and not the ones who sleep over their rights, will be
highly appropriate."
In this case, failure of the concerned student to respond in time proved to be her
undoing.
I. (2015) 11 SCC 493 (Pradeep Kumar Rai v. Dinesh Kumar Pandey) : A process
for promotion of constables and head constables to the rank of Sub-Inspectors in
the State of Uttar Pradesh had been started in 1999. As per the pattern, the
promotion process was to be conducted in three steps: i). the preliminary written
examination and infantry test/physical test; ii). main written examination; and
iii). interview. The candidates who qualified in the preliminary examination and
infantry test/physical test were eligible to appear in the main examination. It was
after the declaration of the result of interview that litigation, which ultimately
reached the Supreme Court, commenced whereby unsuccessful candidates
challenged the interview process on several grounds. While the writ petition filed
before the Single Judge of the High Court succeeded, the Division Bench reversed
the decision. While dismissing the appeal, the Supreme Court concurred with the
Division Bench of the High Court on the points that the appellants had
participated in the process of interview and not challenged it till the results were
declared, although there was a gap of almost four months between the interview
and declaration of result. The Single Judge had interfered noticing substantial
departure from the police regulations in the entire process of selection and
promotion. The number of candidates called for interview was much higher than
the required number, the sealed cover procedure was not followed for candidates
against whom disciplinary or criminal proceedings were pending and their names
were also displayed on the tentative list of selected candidates, members of the
interview committee did not give separate marks individually but a single
collective marking was made for each candidate and the names of persons who
are already dead or under training in some other wing of the police department,
were also included in the tentative list of selected candidates. In paragraph 17 of
the judgment, the Court also held that the candidates cannot approbate and
reprobate at the same time, ~ either the candidates should not have participated
in the interview and challenged the procedure or they should have challenged
immediately after the interviews were conducted.
Although the tribunal quoted some of the sentences from paragraph 17 of the
decision in Pradeep Kumar Rai (supra), we find that the last sentence of the
paragraph was not quoted. We are minded to hold that the last sentence may
have escaped the notice of the tribunal. If properly read and understood, the
decision in Pradeep Kumar Rai (supra) is an authority for the proposition that
despite participating in an interview but prior to publication of the final result a
challenge laid to the selection process on the ground of illegality cannot be held
not maintainable.
J. (2017) 4 SCC 357 (Ashok Kumar v. State of Bihar) : A process was initiated for
promotion to Class-III posts from amongst Class-IV employees of a civil court.
The selection was to be made on the basis of a written test and interview, for
which 85% and 15% marks were earmarked respectively as per norms. Out of 27
(twenty-seven) candidates who appeared in the written examination, 14 (fourteen)
qualified. They were interviewed. The committee selected candidates on the basis
of merit and prepared a list. The High Court declined to approve the select list on
the ground that the ratio of full marks for the written examination and the
interview ought to have been 90:10 and 45 ought to be the qualifying marks in
the written examination. A fresh process followed comprising of a written
examination (full marks - 90 and qualifying marks - 45) and an interview
(carrying 10 marks). On the basis of the performance of the candidates, results
were declared and 6 (six) persons were appointed on Class-III posts. It was
thereafter that the appellants along with 4 (four) other unsuccessful candidates
filed a writ petition before the High Court challenging the order of the High Court
on the administrative side declining to approve the initial select list. The primary
ground was that the appointment process was vitiated, since under the relevant
rules, the written test was required to carry 85 marks and the interview 15
marks. The Supreme Court dismissed the appeals on the grounds that the
appellants were clearly put on notice when the fresh selection process took place
that the written examination would carry 90 marks and the interview 10 marks.
The Court was of the view that the appellants having participated in the selection
process without objection and subsequently found to be not successful, a
challenge to the process at their instance is precluded.
17. Barring two, in none of the aforesaid decisions rendered post 1997, the decision in
Raj Kumar (supra) was considered. Although cited in Manish Kumar Shahi
(supra), the Court in its wisdom did not deal with it; whereas, in Ashok Kumar
(supra) the said decision was held to be distinguishable.
18. In the impugned judgment too, we do not find any discussion made by the
tribunal for holding the decision in Raj Kumar (supra) not to be applicable to the
facts at hand.
19. What does Raj Kumar (supra) lay down? It lays down the law that where a
selection process is tainted by glaring illegalities, the principle of estoppel by
conduct and acquiescence would have no application. The decision in Madan Lal
(supra) and other decisions referred to therein were distinguished. Paragraph 16
of the decision gives a clear picture and hence, is quoted below :
"16. Yet another circumstance is that the Government had not taken out the
posts from the purview of the Board, but after the examinations were
conducted under the 1955 Rules and after the results were announced, it
exercised the power under the proviso to para 6 of 1970 Notification and the
posts were taken out from the purview thereof. Thereafter the Selection
Committee was constituted for selection of the candidates. 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 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 (sic this) 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."
(underlining for emphasis by us)
20. Let us now take a look at two decisions of the Supreme Court which had not
been placed before the relevant Benches while deciding the aforesaid cases. The
first decision is reported in AIR 1965 SC 491 (University of Mysore v. C. D.
Govind Rao) and the other decision is reported in AIR 1990 SC 434 (Dalpat
Abasaheb Solunke v. Dr. B. S. Mahajan). These decisions are authorities for the
proposition that selection process can be challenged on limited grounds, i.e., if a
binding rule has been contravened while making selection, or if the selection is
tainted by illegality, or patent material irregularity in the constitution of the
committee or its procedure vitiating the selection or proved mala fide affecting the
selection, etc.
21. While deciding FMA 1285 of 2013 (University of Kalyani v. Asitabha Das), a
Division Bench of this Court had the occasion to consider all the aforesaid
decisions as well as other decisions of the Supreme Court and went on to hold as
follows:
"51. Disputes relating to selection and appointment invariably involve the
question as to who can challenge such process, when, and on what
ground(s)? Obviously the beneficiary of an illegal act or process, being the
appointee, will not challenge such act/process. Public interest litigation in
service matters is generally not maintainable, except in exceptional cases.
More often than not, it is the persons aggrieved by their non-selection/non-
appointment, and consequent selection/appointment of others, who seek to
pursue their remedy in accordance with law would approach the court to
have such process, which they perceive to have been tainted, invalidated. If
the challenge is nipped in the bud on the basis of the authorities cited which
lay down the law that having participated in the selection process without
demur the participating candidate forfeits his right to challenge the process,
does it not sort of extend an immunity from judicial scrutiny to such
selection process even though the process might have been illegal? Our
understanding of the law on the subject does not persuade us to hold that
an unsuccessful aspirant for a post can never challenge a selection process
after his participation therein. There could be cases where the selection
committee selects a candidate, who lacks the essential eligibility criteria for
appointment, as in the present case. How would the eligible candidate know
that an ineligible candidate would be preferred to him? There could be a
case where a candidate is selected, who had not applied within the last date
for making the applications fixed in the advertisement. How would a
candidate, not selected, know before his appearance before the board of
selectors that the selectee had not applied within time. Take the case of a
candidate who is selected by a board of selectors, one of whom is the close
relative of the selected candidate and such relationship is not made known
to the other selectors. If the unsuccessful candidate does not have such vital
information prior to his appearance before the board of selectors for an
interview and if he has access to such information subsequent to the
appointment and the selection of the appointee is challenged on the ground
of patent illegality or manifest bias, could the selection not be challenged
and such challenge entertained on the ground that there has been a patent
illegality in the procedure of selection or even mala fides? Or should the door
be closed on the face of such an unsuccessful candidate merely because he
had not raised any objection at the time of appearance before the board of
selectors? If the latter question is answered in the affirmative, we have no
hesitation to hold that an illegal selection made by a selecting body would
remain beyond the realm of judicial scrutiny. We are also of the view that
the decisions in C.D. Govinda Rao (supra), Dalpat Abasahed Solunke (supra)
and Raj Kumar (supra) are authorities which permit interference with the
decision to appoint following an illegal selection process and in case of
glaring illegalities, such as the present one, estoppel, waiver and
acquiescence may not have any application depending upon the facts that
are presented and established before the court."
22. We share the views expressed in University of Kalyani (supra).
23. In our considered view, what needs to be ascertained by the tribunal/court is
whether the aggrieved candidate, who complains of illegality in the selection
process had, or had not, due knowledge of the such process being conducted
illegally prior to participating in the process and taking a chance of selection. If it
is found that he had knowledge and the deviation from or disregard to the
applicable recruitment rules is not glaring but minimal, in the sense that it does
not shock its conscience, the court/tribunal ought to stay at a distance. But, in a
case where the candidate has knowledge of an illegality, yet, participates in the
process but the extent of illegality is such that it can be viewed as "glaring
illegality", it is for the tribunal/court to decide the point of maintainability of the
challenge judiciously. However, if the candidate does not have knowledge and the
process suffers from glaring illegality, the decisions relied on by the tribunal to
dismiss the original application of the petitioners would not apply but C. D.
Govind Rao (supra), Dalpat Abasaheb Solunke (supra), and Raj Kumar (supra)
ought to be applied.
24. The case before us falls in the aforesaid second category. The petitioners had
knowledge that the reservation policy was being observed in the breach, yet, they
participated in the process. They moved the tribunal before the results were
declared. Even if the tribunal were moved after declaration of results, it is
necessary to examine the ground of challenge. The ground is, as noted above,
breach of the reservation policy. Whether or not the ground is substantiated by
the pleadings/evidence on record is altogether a different matter. We are not to
examine the ground and give our decision at this stage. However, there cannot be
any dispute that the right to reservation in public employment flows from Article
16 of the Constitution of India. The State, in terms of the law enacted for
protection of the interest of the backward classes, is mandated not to fill up a
reserved vacancy by a general candidate. Even though the petitioners might have
had knowledge of what they perceive to be a flaw in the notice inviting
applications right from the day the same was brought in the public domain and
they had participated in the process without raising demur, could it be said that
they had waived their right to challenge the notice? Can there be a waiver of a
Fundamental Right? The answers to these questions cannot possibly be in the
affirmative. The tribunal, in our view, failed to consider the objection to the
maintainability of the original application from this perspective and has rendered
a decision that we find difficult to sustain.
25. In the final analysis, the writ petition succeeds. The impugned judgment and
order being unsustainable in law, stands set aside. The result of this order would
be that OA 723 of 2017 shall revive on the file of the tribunal. We request the
tribunal to decide the original application on its merits, as early as possible
subject to its convenience.
26. There shall be no order as to costs.
(DIPANKAR DATTA, J.)
Bibek Chaudhuri, J.:
I agree.
(BIBEK CHAUDHURI, J.)