In the judgment of more than a dozen civil appeals relating to the selection of 1983 Physical Training Instructors (PTIs) by the Haryana Staff Selection Commission and against a common judgment delivered by the Punjab & Haryana High Court on September 30, 2013, Justice Ashok Bhushan and Justice Navin sinha, at the Supreme Court, , re-iterated the Court’s earlier view expressed in the judgment of the case – Raj Kumar and Others v. Shakti Raj & Others –(1997) 9 SCC 527, 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.
During the course of reaching this conclusion, the Court formulated these 7 points from the pleadings on the records and submissions made by the parties’ lawyers :
1. Whether the respondent –writ petitioners who had participated in the selection were stopped from challenging the selection in the facts of the present case – Ramjit Singh Kardam & Others v. Sanjeev Kumar & Others?
2. Whether the respondent-writ petitioners could have challenged the criteria of selection applied by Commission for selection after they had participated in the selection?
3. Whether the decision of June 30, 2008 to cancel the written examination and the decision of July 11, 2008 to call the candidates for interview 8 times number of vacancies on minimum percentage of marks as fixed therein and the decision of July 31, 2008 to call all the eligible candidates for interview were arbitrary decision to change selection criteria published on December 28, 2006, which have effect of downgrading the merit in the selection?
4. Whether it was obligatory for the Commission as a body to take all decisions pertaining to selection on the post of PTI including the 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 these decisions were taken by the Chairman alone?
5. Whether on August 3, 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 August 3, 2008 as claimed by the Commission?
6. Whether without there being any specific allegations of mala fide against the Chairman and members of the Commission and without they having been joined by name as party respondents, the writ petitioners could have challenged the allocation of marks in viva voce and HC 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 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?
7. Whether no fresh selection can be held as directed by the Single Judge since as per 2012 Rules, the post of PTI Has been declared as a dying cadre and the post has been merged into the post of TGT Physical Education?
Refuting the contention of the appellants raising applicability of Doctrine of Estoppel to the facts of this case it was submitted on behalf of the respondent-writ petitioners that they were not even aware of the criteria, which was to be applied for selection, which they came to know only after select list was published , there was no occasion for them to challenge before the said date.
The Supreme Court has pointed out that in the present case, whether the respondent-writ petitioners are stopped from challenging the selection can be answered in negative taking into consideration that when the Commission had not published any criteria on the basis of which candidates were going to be selected and they participated in the selection process without knowing the criteria of selection, they cannot be shut out from challenging the process of selection when ultimately they came to know that the Commission had step by step diluted the merit in selection.
When candidate is not aware of the criteria of selection, to which he was subjected in the process and the said criteria was published for the first time along with final result on April 10, 2010, he cannot be estopped from challenging that 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 of 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.
The HC division bench is right in its conclusion that the selection criteria which saw light of the day along with declaration of the selection result could be 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 stopped from challenging the selection.
In the light of this, the Supreme Court has held that the writ petitions could not have been thrown on the ground of estoppel and the 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.
The decisions on June 30, July 11 and July 31, 2008 were arbitrary decisions to change without any reason to change the selection criterion published on December 28, 2006, which had the effect of downgrading the merit in the selection. As there are no rules or resolution delegate the said power to Chairman or any other member, hence all the decisions regarding mode of selection should have been taken by the Commission itself.
When the continuance of a person on a post is by an interim order, the continuance is always subject to outcome of the litigation. The displacement of appellants from their posts is inevitable consequence of upholding of the HC’s judgment.
Upholding the impugned judgment of the High Court, the Supreme Court has disposed of the appeals, subject to the modifications ordered by it. The Court has directed the Commission to complete entire selection process within five months from the date Commission starts working after the present lockdown is over, which was the time fixed by the HC Single Judge for completing the process.
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