Cancellation of Selection

CIVIL APPEAL NO.2103 OF 2020 (Arising out of SLP(C) No. 35373 of 2013) RAMJIT SINGH KARDAM & ORS V/s SANJEEV KUMAR & ORS dated 08.04.2020

“These appeals have been filed against the common judgment dated 30.09.2013 of High Court of Punjab and 2 Haryana dismissing LPA filed by the appellants affirming the judgment of learned Single Judge dated 11.09.2012 by which the Selection dated 10.04.2010 selecting appellants on the post of Physical Training Instructor (PTI) was set aside”

It is pleaded that the respondent writ petitioners have participated in selection without any demur or protest, hence, they are not entitled to challenge the selection after having been declared unsuccessful. On the principle of estoppel, they are precluded from challenging the selection.

It is submitted that criteria for selection was uniformly applied to all the candidates and respondent writ petitioners having not challenged the criteria of 21 selection cannot be allowed to challenge the criteria after declaration of the select list. It is further submitted that there are no allegations of any mala fide against the Chairman or any member of the Commission or any candidate.

The Courts cannot start looking on the marks allocated in Viva-voice nor is the same in the domain of the Court. The appellants are now over age and having worked for 10 about years, at this stage, they cannot be displaced. Increase of marks from 25 to 30 for viva-voice was not violate of any norms. Jurisdiction under Article 226 is not an investigative jurisdiction but it is adjudicatory jurisdiction.

Ld. Senior Counsel appearing for the respondent writ petitioners submits that the writ petitioners were unaware of the criteria which was to be applied by the Commission in the Selection and they came to know about the criteria of 60 marks for Academics Qualifications and 30 marks for Interview only by final result dated 10.04.2010 when it was mentioned in the final result. The Commission could not have held any selection without declaring the criteria beforehand. The Commission from the very beginning has proceeded in a manner which indicate that the merit criteria was deliberately given up to accommodate favourites. The entire selection has rightly been set aside by learned Single Judge and affirmed by the Division Bench. The respondent writ petitioners were meritorious and deserved selection in event the Commission could have proceeded to examine the 25 candidates on merit and as per the criteria of holding written examination or screen the candidates 8 times of the number of vacancies. The petitioner after coming to know about the criteria from the result dated 10.04.2010 immediately filed writ petition in May, 2010 challenging the criteria. The undue delay in declaring the result i.e. one and a half year creates doubt about the fairness of the Commission in declaring the result. He submits that entire selection having scrapped by the High Court, this Court may direct for holding of fresh selection enabling the petitioners to participate and get selected on their merit. It was submitted that insofar allocation of marks by member and expert there are no guidelines or materials to indicate how the marks were awarded in the viva-voice.

From the pleadings on the records and submissions made by the learned counsel for the parties, following points arise for consideration: -

i)            Whether the respondent writ petitioners who had participated in the selection were 28 estopped from challenging the selection in the facts of the present case?

ii)            Whether the respondent writ petitioners could have challenged the criteria of selection applied by Commission for selection after they had participated in the selection?

iii)                 Whether the decision dated 30.06.2008 to cancel the written examination and the decision dated 11.07.2008 to call the candidates for interview 8 times number of vacancies on minimum percentage of marks as fixed therein and the decision dated 31.07.2008 to call all the eligible candidates for interview were arbitrary decision to change selection criteria published on 28.12.2006, which have effect of downgrading the merit in the Selection?

iv)                 Whether it was obligatory for the Commission as a body to take all decisions pertaining to Selection on the post of PTI including the 29 decision of not holding written examination, decision to screen on the basis 8 times of vacancies and decision to call all eligible candidates and whether aforesaid decisions were taken by the Chairman alone?

v)                  Whether on 03.08.2008, a decision was taken by the commission fixing the criteria for the selection on the post of PTI which was signed by all the members on 03.08.2008 as claimed by the Commission?

vi)                 Whether without there being any specific allegations of mala fide against the Chairman and members of the Commission and without they having been impleaded by name as party respondents, the writ petitioners could have challenged the allocation of marks in viva-voce and High Court was right in accepting the claim that candidates who got highest marks for academic qualifications ranging between 40 to 48.74 marks have been awarded 30 just 7 to 9 marks in the viva-voce and as against it there are hundreds of selected candidates who have been awarded 20 to 27 out of 30 marks in the viva-voce to ensure that they outclass the academically bright candidates?

vii)                Whether no fresh selection can be held as directed by learned Single Judge since as per 2012 Rules, the post of PTI has been declared as a dying cadre and the post has merged into the post of TGT Physical Education?

POINT NOS. 1 & 2

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 35 Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357.

In Madan Lal and Others, 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 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.”

HELD

When candidate is not aware of the criteria of selection under which he was subjected in 38 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:-

39 “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 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...” 40. 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.

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.

POINT Nos. 3, 4 & 5

The objective of a State in selecting persons into public service has always been 43 to select the best and most suitable person. Justice O. Chinnappa Reddy, J. speaking for this Court in Lila Dhar vs. State of Rajasthan and others, (1981) 4 SCC 159, had laid down that open competition has been accepted universally as the gateway to public services. In paragraphs 4 and 5 following has been laid down:

“4. the object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services…….”

The Constitution Bench of this Court in Ashok Kumar Yadav and others vs. State of Haryana and others, 1985(4) SCC 417. In paragraph 23 following was laid down: “23. This Court speaking through Chinnappa Reddy, J. pointed out in Lila Dhar v. State of Rajasthan that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service.”

HELD

As per the notification extracted above it is the Commission, who “shall devise the mode of selection and fix the criteria for selection.” The said power has to be exercised in a reasonable and fair manner to advance the purpose and object of selection. Even if it is assumed for the sake of the argument that the Commission can change the criteria of selection from time to time, the said power has to be exercised not in an arbitrary manner

Tamil Nadu Computer Science BED Graduate Teachers Welfare Society (1) vs. Higher Secondary School Computer Teachers Association and others, 2009(14) SCC 517. Following was laid down in paragraph 33:

“33. We, however, cannot hold that the subsequent decision of the Government thereby changing qualifying norms by reducing the minimum qualifying marks from 50% to 35% after the holding of the examination and at the time when the result of the examination was to be announced and thereby changing the said criteria at the verge of and towards the end of the game as justified, for we find the same as arbitrary and unjustified. This Court in Hemani Malhotra v. High Court of Delhi,(2008) 7 SCC 11, has held that in recruitment process changing rules of the game during selection process or when it is over are not permissible.

Tej Prakash Pathak and others vs. Rajasthan High Court and others, 2013(4) SCC 540, hence the judgment of this Court laying down the criteria cannot be changed during the course of the selection is yet to be tested. For the purposes of the present case we proceed on the assumption that even if the criteria can be changed by selecting body from time to time, the said change cannot be affected arbitrarily.

In Principles of Administrative Law, M.P. Jain & S.N. Jain, 6th Edition, writes in Chapter XXII states:- “When power is conferred on a multi-member body, the power ought to be exercised by the concerned body; the power cannot be exercised either by the chairman alone or by one of its members. This can be done only if the body concerned delegate’s power to the chairman or a single member to discharge certain functions on its behalf.”

This Court by a Constitution Bench in Naraindas Indurkhya Vs. The State of Madhya Pradesh and Others, (1974) 4 SCC 788 wherein in paragraph 17 following was stated:-

17. ……………………… Now we do not dispute the general proposition that when a power or function is given by the statute to a corporate body and no provision is made in the statute as to how such power or function shall be exercised, the corporate body can by a resolution passed at the general meeting devise its own mode of exercising such power or function, such as authorising one or more of the members to exercise it on behalf of the Board…………………”

54. As noted above the decision of Chairman of the Commission dated 30.06.2008 not to hold the written examination was claimed to have been taken due to “administrative reasons”, but what were “administrative reasons” have never been disclosed or brought on record by the Commission…. There was no occasion to give up the merit selection in midway. Further, when no reasons are forthcoming to support the so called ‘administrative reasons’ in 59 the decision dated 30.06.2008 which was so stated by Chairman for the scrapping the written test, we have to hold the said decision arbitrary and without reason.

We, thus, conclude that decision dated 30.06.2008 for not holding the written examination and steps taken consequent thereto were all arbitrary decisions, unsustainable in law.

We answer point Nos.3, 4 and 5 in following manner: -

Ans.3: The decisions dated 30.06.2008, 11.07.2008 and 31.07.2008 were arbitrary decisions without any reason to change the selection criterion published on 28.12.2006 which have effect of downgrading the merit in the selection.

Ans.4: The Commission being a multi-member body, all decisions pertaining to mode of selection and criteria was to be taken by the Commission itself, there being no rules or resolution delegating the said power to Chairman or any other member. 62 The decision of not holding written examination dated 30.06.2008, decision to screen on the basis of eight times of vacancies and percentage of marks dated 11.07.2008 and decision dated 31.07.2008 to call all eligible candidates, were all decisions taken by the Chairman himself, which decisions cannot be said to be decisions of the Commission.

Ans.5: The decision dated 03.08.2008 was never taken on 03.08.2008 as claimed and the said resolution was prepared subsequent to declaration of the result when the learned Single Judge asked for criteria of the selection, which was produced in a separate loose sheet signed by all members.

Point No.6

Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited and Others, (2013) 1 SCC 524, where this Court has laid down that the law casts a heavy burden on the person alleging mala fides. This Court has further laid down that when the petitioners alleges malice in fact, it is obligatory for the petitioner to furnish particulars and implead the persons against whom such malice in fact is alleged. In paragraphs 25, 26.1, 26.2 and 27, following has been laid down:-

 “25. ………………….The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner 64 alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision-maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.

The present is not a case of malice in fact. The “malice in fact” and “malice in law” are two well-known concepts in law. In Ratnagiri Gas and Power Private Limited (supra), this Court has dealt with both the concepts, i.e., “malice in fact” and “malice in law”. Dealing with the conceptual difference between “malice in fact” and “malice in law”, this Court laid down following in paragraphs 30, 31 and 32:-

“30. ……………………….The conceptual difference between the two has been succinctly stated in the following paragraph by Lord Haldane in Shearer v. Shields, 1914 AC 808 (HL) quoted with approval by this Court in ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521: (SCC p. 641, para 317) “317. … ‘Between “malice in fact” and “malice in law” there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of “malice in law”, although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. “Malice in fact” is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.’” (Shearer case, 1914 AC 808 HL, AC pp. 813-14)