Bombay High Court
Rajendra Bhimrao Mandve & Others vs Maharashtra State Road Transport ... on 7 May, 1997
Equivalent citations: 1998(4)BOMCR556
Author: S. Radhakrishnan
Bench: S. Radhakrishnan
ORDER M.B. Ghodeswar, J.
1. The ten petitioners have filed this petition under Articles 226 and 227 of the Constitution of India challenging the selection list for appointment of Drivers displayed by the respondent No. 1 Corporation on 26-7-1996 contending that the selection list is defective, illegal, contrary to rules and procedure governing selection under section 34 of the Road Transport Corporations Act, 1950 and also fundamental rights of the petitioners under Article 14 of the Constitution of India.
2. The facts in brief are as under. The respondent No. 1 Maharashtra State Road Transport Corporation (for short the "Corporation") is constituted under the provisions of Road Transport Corporations Act, 1950. The respondent No. 1 has constituted a Committee for selection of candidates for appointment The respondent No. 4 Divisional Controller, M.S.R.T.C., Yavatmal Division, Yavatmal issued an advertisement for the post of Drivers and Conductors. The said advertisement was published in the news papers on 20-9-1995 inviting the applications for the said posts. The petitioners submitted the applications for the post of Driver as they fulfilled all the requisite qualifications and experience. The petitioners were called for trade test which was held on 27-11-1995 and as they were found successful in the trade test, they were called for personal interview by letter dated 3-7-1996. The personal interviews were held in the office of the Divisional Controller, M.S.R.T.C., Yavatmal. The respondent No. 4 then displayed the selection list on 26-7-1996. The names of the petitioners did not appear in the said selection list. On enquiry, the petitioners came to know that the Selection Committee had exercised the power of allotment of marks out of 25 per cent in the personal interview erroneously and therefore, the aggregate marks had fallen short in spite of securing more marks in the trade test.
3. In exercise of the powers under section 45 of the Road Transport Corporations Act, 1950, the respondent No. 1 Corporation has framed Service Regulations laying down the service conditions of the employees. Under the provisions of Service Regulations, the Corporation has issued a General Standing Order No. 503 dated 19-6-1959 prescribing a recruitment procedure. It provides for inviting applications by issuing advertisement, undertaking written test/trade test, personal interview and selection. The Corporation has issued the circulars from time to time regarding the procedure of selection. As per circular dated 23-1-1995, 60 per cent marks were allotted for written/trade test and 40 per cent marks for personal interview. The respondent No. 1 Corporation again issued Circular No. 15 of 1995 dated 4-4-1995 in pursuance of the instructions issued by the Government of Maharashtra under its letter dated 2-1-1995. The respondent No. 1 followed the instructions of the Government and passed a Resolution No. 95.03.19 dated 21-3-1995 stating that the candidate should be allotted marks for the written test out of 87 1/2% and for personal interview out of 12 1/2%. The petitioners have further averred that departing from the rule contained in the circular dated 4-4-1995, the Selection Committee has not considered the marks obtained by the petitioners and other candidates in the trade test and the selection has been made only on the basis of the marks allotted in the personal interview.
4. The respondents, in their submissions, have denied that they deprived the petitioners of their opportunity of employment. They have submitted that there is no trade prescribed for selecting Drivers and only those candidates who cleared the Driving test, were called for personal interview. The personal interviews were held on 26-7-1996, in the office of the respondent No. 4. The respondents admitted that the members of the Selection Committee gave marks out of 25 per cent to each candidate appearing before them and average of these marks were taken into account while preparing the final selection list. The respondents also submitted that the petitioners have no locus to challenge the procedure followed by the respondent Corporation. They admitted the issuance of General Standing Order No. 503. The respondent Corporation has been improving its examination method and therefore, amended the same from time to time in the interest of selection of better candidates. They have denied that the Corporation has departed from the instructions issued by the Government in its letter dated 2-1-1995. They have further submitted that Circular No. 17/96 issued on 24-6-1996 is not in violation of the Government directives or even the Corporation's own circular dated 4-4-1995. It is also submitted that as there is no written test prescribed for the appointment of Drivers, the marks for personal interview are raised to 25 per cent instead of 12 1/2 per cent. They denied that the circular dated 24-6-1996 effects any change. They have submitted that as the trade test is not prescribed for the appointment of Drivers, the circular dated 4-4-1995 has no application. They have also denied that the circular dated 24-6-1996 is operating retrospectively or has been wrongly applied for selection. It is submitted that the circular dated 24-6-1996 is only clarificatory and does not affect any right of the petitioners. It is the stand of the respondent Corporation that the trade test held on 29-11-1995 was not a written test and therefore, the circular dated 4-4-1995 has got no application in this case. It is further submitted that the sanction from the State Government before issuing the circular dated 24-6-1996 is not required and there is no violation of the Corporation's Resolution dated 21-3-1995. The circular dated 24-6-1996 is not in violation of section 34 of the Road Transport Corporations Act, 1950 and it is also not arbitrary. They have denied that there is any violation of Articles 14 and 16 of the Constitution of India. It is submitted that the petitioners have no right to approach this Hon'ble Court and no legal rights of the petitioners have been affected. The petition is filed under misconceived understanding of facts.
5. The petitioners and the respondents have filed documents, charts, statements showing marks obtained in driving test and personal interviews.
6. We have heard the learned Counsel for both the sides for considerable time. The learned Counsel for the respondents has raised the two preliminary objections-- (1) The petitioners have no locus, and (2) there is non-joinder of selected candidates as parties to the petition. The learned Counsel for the respondents has contended that the petitioners have no right to challenge the selection list. The petitioners cannot claim to have a right to be heard. The petitioners have acquiesced the procedure of selection and only because their names do not appear in the selection list, they have no right to file the petition. It is further contended that the selected candidates have secured the right of consideration for appointment and therefore, the petition is not maintainable. The learned Counsel for the respondents has further contended that the Corporation has got freedom of employer and it can adopt, alter and change the procedure of selection for appointment of best candidates available.
7. In order to appreciate the rival contentions of the parties, first of all the relevant provisions of the Act and the Rules have to be noticed. Section 12 of the Road Transport Corporations Act, 1950 (for short, "the Act") reads as under :
"12. Power to appoint Committees and delegate functions.---(1) A Board may, from time to time, by resolution passed at a meeting-
(a) appoint Committee consisting of Directors for performing such functions as may be specified in the Resolution;
(b) delegate to any such Committee or to the Chairman or Vice-Chairman, subject to such conditions and limitations, if any, as may be specified in the Resolution, such of its powers and duties as it may think fit;
(c) authorise the Managing Director or any other office of the Corporation, subject to such conditions and limitations, if any, as may be specified in the resolution to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business.
(2) The Chairman, Vice-Chairman or Managing Director may delegate any of his powers and duties including powers and duties delegated to him under subsection (1) to any officer of the Corporation, and the officer to whom such powers and duties are delegated, shall exercise and perform such powers and duties under the control and supervision of the Managing Director."
Section 34 of the Act reads as under :
34. Direction by the State Government---(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks.
(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under subsection (1) except with the previous permission of the State Government."
Section 45 of the Act reads as under :
"45. Power to make regulations.---(1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters namely :--
(a) the manner in which, and the purposes for which, persons may be associated with the Board under section 10;
(b) the time and place of meetings of the Board and the procedure to be followed in regard to transaction of business at such meetings;
(c) the conditions of appointment and service and the scales of pay of officers and other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser, as the case may be, the Chief Accounts Officer-cum-Financial Adviser;
(d) .........
(e) ........."
8. The Corporation on 19th June, 1959, has issued General Standing Order No. 503 which reads as under :
"In pursuance of Corporation Resolution No. 3834, dated the 24th January, 1959, and in exercise of the authority vested in the Corporation by virtue of Regulation 43-A of the State Transport Employees' Service Regulations, it is hereby, directed that the recruitment of candidates to the service of the Corporation and the grant of promotion to, the fixation of the Seniority of and the re-categorisation of, its employees shall, with effect from 1st July, 1959 be in accordance with the "Bombay State Road Transport Corporation (Recruitment, Promotion, Seniority and Recategorisation) Procedure" attached hereto."
In the procedure at Item No. 16, it is stated that unless and otherwise directed by the Competent Authority, a written and/or trade test of candidates to be recruited to any post shall be had, and at Item No. 17 it is stated that the candidates passing there written or trade test shall be called for interview before the Services Board or the Selection Committee as the case may be.
9. By Circular No. 3/95 dated 23-1-1995 for selection of the candidates for the post of Drivers in S.T., the Corporation has prescribed a special procedure and for its implementation, the Corporation has constituted two Committees, namely the first Scrutiny Committee and the Second Scrutiny Committee. These Committees have been constituted to verify the application form, for examination of the physical fitness of the candidates and for the purpose of taking driving test. The candidates who are found successful in the training test taken by the Second Scrutiny Committee are placed before the Sub-Selection Committee of the State Transport Selection Board. By a Resolution No. 92.08.10 passed on 26-8-1992, the Corporation has prescribed a procedure to be followed in effecting direct recruitments which provides that a candidate should obtain 60% marks in written test/trade test and 40% marks in the personal interview for the purpose of including him in the final selection list. This circular also makes it clear that the selection made on the basis of the marks obtained in the personal interview is not according to the rules and further that after the meeting of Sub-Selection Committee is over, the final selection list should be prepared by taking into consideration the marks obtained under both heads.
The Corporation issued another Circular No. 15/95 dated 4th April, 1995. It states that the Board of Directors has passed a Resolution No. 96.03.19 dated 21-3-1995 according to which the number of marks for the written test shall be 87 1/2% and marks for the oral test shall be 21 1/2%. The ratio of the marks to be secured by the candidates for passing the written test/trade test and for personal interview shall be in the ratio of marks mentioned above.
10. By Circular No. 17/96 dated 24th June, 1996 for selection of the candidates for the post of Driver in S.T., the Corporation has not prescribed written examination. The selection of the candidates for the post of Driver is made after the vehicle driving test is taken by the Second Screening Sic Scrutiny Committee and by personal interview by the Selection Committee. The vehicle driving test is not a written examination. It is a practical test of driving by the candidates (it is a practical aspect). It is not possible to allot marks to a candidate in such test. In such vehicle driving test, the candidates are either declared "passed" or "failed". Therefore, once the candidate is declared passed by the Regional Screening Committee in vehicle driving test, then selection is made after he appears before the Sub-Committee of the S.T. Selection Board. But according to the instructions contained, in the above-referred circular, weightage of 87 1/2% marks are being given in the vehicle driving test like written examination. It has come to the notice of the management that the practice of allotment of marks in the above mentioned manner is not proper. Therefore, the following modified instructions have been again issued. The same should be followed strictly. In paragraph 3, it is stated that as per Annexure "B" attached to Circular No. 52/1980, the candidates will be allotted the marks in the vehicle driving test. On the basis of the said marks, the candidates will be classified into two groups and will be declared either pass or fail.
11. It is clear that the earlier Circular No. 15/95 was in operation. The learned Counsel for the respondents has submitted that a candidate who secures 50 per cent or more marks in trade test, is declared "passed" in view of the Circular No. 17/96 dated 24-6-1996 and thereafter, he is called for personal interview. Every Member of the Selection Committee will allot marks out of 25 to each candidate and on the basis of the said marks, the final selection list of the candidates is prepared. From the documents, charts showing the marks obtained by the petitioners and other candidates, it is seen that the petitioners have secured 90 per cent or more marks in driving or trade test. Almost all selected candidates have obtained less marks than the petitioner in the driving test. The Corporation has followed the procedure contained in Circular No. 15/95. All the petitioners would have been selected as per Circular No. 52/80 dated 21st August, 1980 regarding the Screening Committee for selection of drivers, in which a very detailed and elaborate procedure is given for screening of candidates viz.--(I) Screening of employment application. (II) Screening of physical measurements, (III) Scrutiny of documents. (IV) Driving Test, and (V) Personal interview. It is stated that the most important aspect of the scrutiny of candidates is personal interview. Planned interview is the basis for securing definite information in orderly manner. The basic skill in interviewing is to put man at ease so that he talks freely. Some special clues are given. The candidate should be asked questions about his past service, his family background, income of his family, why he gave up schooling etc. Questions may be asked about his relation with his past employer to find out the clues to loyalty, co-operation and ability to get along with others etc. Questions may be asked about his affinity towards his family, clues about his worries he may carry to his job, to find out in a direct or in a round about whether he would fall to a habit of drinking if he has not already formed it and whether he has other vices such as gambling etc. The Corporation has taken the personal interviews of all the candidates who have been declared passed in the trade test on one day. A statement was made that 4 to 5 candidates were asked to stand in a row before the Interview Committee, at the same time for the purpose of interview. It is practically impossible for the Interview Committee to interview all the candidates in one day i.e. more than 300 candidates. It is therefore clear that the interview Committee has not followed the procedure regarding interview of the candidates as laid down in Circular No. 52/80 dated 21st August, 1980. The rules are statutory. There is no Resolution of the Corporation for effecting a change. There is also no prior permission from the Government for effecting the change. Apparently the interview procedure adopted in this case was a farce.
12. The learned Counsel for the petitioners has submitted that earlier, the Circular No. 15/95 was in operation and a right is created in favour of the petitioners for being considered as per the existing Recruitment Rules and this right cannot be affected by amending the rules retrospectively He relied upon the decision , P. Mahendran v. State of Karnataka. Reliance is placed by the learned Counsel for the petitioners as well as the learned Counsel for the respondent on the decision reported in (1993)II L.L.J. 1043, Union Territory of Chandigarh v. Dilbagh Singh, head note of which reads as under :
"Appointment ---Selection by Selection Committee --- On being found that the selection was made in an unfair and injudicious manner, select list cancelled --Selection Committee not entitled to be heard before cancellation ---Selected candidates also not entitled to be heard --- Although they may have a legitimate expectation, they have no indefeasible right to be appointed in the absence of any rule --No violation of principles of natural justice."
It is held :
"A candidate in the select list does not acquire any indefeasible right to be appointed in the absence of any specific rule. He could be aggrieved only when the Administration acts arbitrarily or for no bona fide reasons. Such a candidate, even if he has a legitimate expectation, cannot claim to have a right to be heard before the select list is cancelled for bona fide and valid reasons and not arbitrarily."
13. The learned Counsel for the petitioners has further placed reliance on the decision , Navjyoti Co-op. Group Housing Society v. Union of India, in which it is held up in paras 16 and 15 as under :
"The doctrine of "legitimate expectation" imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. The existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. Within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. In a case of 'legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter."
The learned Counsel for the petitioners also placed reliance on the decision , P. Mahendran v. State of Karnataka, the Head Note of which reads as under :
"it is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights, the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 in the instant case does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule seeking the change in the eligibility criteria for selection and appointment to the post of Motor Vehicles Inspectors was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment : moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter."
14. The learned Counsel for the respondents has placed strong reliance on the decision in the case of S. V. Puranik v. Indian Airlines, reported in 1991 Lab. I.C. 696 Head Note (C) of which reads as under :
"The process of selection should be exclusively within the discretion of the employer. In their wisdom the employers, in the instant case, have chalked out a policy that the written examination and group discussions has a limited purpose inasmuch as the candidates not getting through this process could be eliminated from further competition. They did not make this written test and the group discussion as an integral part of the final selection. Therefore, in the circumstances, it cannot be said that this process in itself is arbitrary. May be, that some arbitrariness may be injected at the hands of the persons who carry out those policy decision or who man the selection panel, but that does not vitiate the Rule itself.
The written examination does not and cannot assess the abilities of the person. It may only disclose the intellectual level of a person. Written examination conducted within four corners of the prescribed syllabus may expose the intelligence and knowledge of the incumbent but it cannot expose the ability of the individual. The ability can be judged only in interviews. Thus although the written test and the interview may be overlapping, the written test cannot be a substitute for interview vice-versa. It cannot, therefore, be said by the stretch of imagination that when written examination is conducted within the four corners of the syllabus prescribed, no interview is necessary. It cannot also be that the evaluation of a candidate in the written examination has necessarily to be carried forth and added to the assessment in interviews, particularly when the rule does not treat the written examination as an integral part of the selection process. It merely purports to be an elimination test so that a candidate failing in the written examination cannot expect to knock at the doors of the interview hall."
The learned Counsel for the respondents has also placed reliance on the decision , Lalit Sehgal v. State of Goa, head note (C) and (D) of which reads as under :
"(C) : Doctrine of Legitimate Expectation---Effect of --- Challenge to Goa Government's decision to increase number of electronic amusement slot machines from 200 to 400 on ground that petitioners had invested amounts in import of machines in good hope that number will remain restricted to 200 machines only ---Held, the contention is misconceived --The concept of legitimate expectation has to be based on a promise or past practice and not on mere anticipation -- Policy decision of Government cannot be taken as a promise that number of machines will remain static --Expectation cannot be inferred as a right."
"(D) -- Doctrine of Legitimate Expectation- Right of hearing -- Challenge to Goa Government decision to increase the number of amusement slot machines from 200 to 400 on ground that no hearing was given to effected parties---Held, in matters of policy decisions only expectation can be had is that existing policy of the time will be fairly applied --Doctrine cannot be invoked to prevent change of policy."
15. The respondents have also placed reliance on the decision reported in the case of Madan Lal v. State of Jammu and Kashmir, in respect of their contention that once the candidates appear at the examination, without protest, and not succeed, no relief can be granted. Head Note (A) reads as under :
"(A) Constitution of Jammu and Kashmir, Section 24 --- Jammu and Kashmir Civil Services (Judicial) Recruitment Rules (1967), Rule 10-- Selection -
Munsiffs-- Viva Voce test -- Manner and method of-- Written test and oral interview-- Candidate taking calculated chance and appeared at oral interview -- Candidate cannot challenge interview test as unfair."
The respondents also relied on the decision reported in the case of Prabodh Verma v. State of Uttar Pradesh, for the proposition that the selected candidates who would be vitally affected are not made respondents and therefore, for non-joinder of necessary parties, no relief can be granted to the petitioners.
16. As discussed above, the respondent Corporation has followed a consistent policy of allotting initially 60 per cent and later on 87 1/2 per cent marks for written/trade test for the post of driver. An advertisement in this regard was published in the newspapers on 20-9-1995. When the candidates including the petitioners applied for the said post, Circular No. 15/95 dated 4-4-1995 was in operation and this Circular No. 15/95 was issued as the change was effected by the Government. Therefore, the weightage of marks secured by the candidates in the written trade test was given to the candidates. It may be noted that there are no directives of the State Government and also no resolution is passed by the Corporation for effecting any change in the procedure and for the first time, with a view to deny such a weightage to the candidates, the respondent Corporation has issued the Circular No. 17/96 dated 24-6-1996 and that too, without any sanction or directives from the State Government and without any Resolution of the Corporation. The stand, that marks cannot be allotted in the trade test, taken in this Circular No. 17/96 is contrary to the policy/procedure of selection which was consistently followed by the respondent Corporation. Even the learned Counsel for the respondents has submitted that the candidates who secured 50 per cent marks in trade test are declared as "passed" and those who secure below 50 per cent marks are declared as "failed" which indicates that marks can be allotted in a trade test. This Circular No. 17/96 is clearly defective, invalid and the selection made on the basis of such an invalid circular is illegal and arbitrary.
17. In view of P. Mahendran's case cited supra, the Circular No. 17/96 being not retrospective, it cannot adversely affect the right of the petitioners for being considered for selection. The petitioners have a right for being considered for selection. Even though the petitioners had participated in the process of selection by way of written test, the petitioners are certainly entitled to agitate their claim as the respondent Corporation has adopted a wrong procedure-- in view of the decision in the case of Union Territory of Chandigarh v. Dilbagh Singh cited supra. The selection is made in an unfair and injudicious manner. The Selection Committee and also the selected candidates are not entitled to be heard and therefore, non pleading of selected candidates is not bad in law as they cannot claim to have a right to be heard. As the candidate in the select list does not acquire any indefeasible right for appointment, the select list therefore requires to be set aside.
18. Having given our anxious considerations to the facts, submissions of the parties and to the legal position, we find there is much substance in the contentions raised by the learned Counsel for the petitioners. The petitioners' right of being considered for selection is valid. The selection for the post of Drivers is not made according to the prescribed and consistent procedure and therefore, the select list requires to be quashed and set aside.
In the result, the instant writ petition is allowed. The selection list displayed by the respondent Corporation on 26-7-1996 is quashed and set aside. In the circumstances of the case, there shall be no order as to costs.
19. Petition allowed.