Kisan S/O Sukhdeo Lokhande vs Collector And Anr.
2004 Latest Caselaw 306 Bom

JUDGMENT

B.R. Gavai, J.

1. The present petition came to be filed by the petitioner praying for quashing and setting aside the revised selection list issued by the respondent No. 1 and further direction to implement the select list dated 3rd October, 2003 issued by the respondent No. 1 and to give an appointment to the petitioner.

2. The facts in brief out of which the present petition arise are as under :--

That, the petitioner belongs to Scheduled Tribe category and is also a Project Affected Person. The name of the petitioner was registered with the respondent No. 1, in the list of the Project Affected Persons maintained by the respondent No. 1.

3. The respondent No. 1, Collector has issued interview call letter dated 19th September, 2003 to the petitioner for being interviewed for selection to the post of class-III category. Vide another letter dated 23rd September, 2003, the respondent No. 1 informed the petitioner that the interviews for the said post will be held on 30th September, 2003 instead of 26th September, 2003. The petitioner accordingly attended the interview on 30th September, 2003.

4. The respondent No. 3 declared the Select List of the candidates on the Notice Board in premises of the office of respondent No. 1 on 3rd October, 2003. According to the petitioner, his name was shown at Sr. No. 2 in the said select list on 3rd October, 2003. The petitioner submits that, however, after five to six days, another select list was published on the Notice Board in the office of respondent No. 1. The petitioner submits that surprisingly in the said list, the name of the petitioner was not shown. The petitioner, therefore, made an application to the respondent No. 1 and also sent telegram, pointing out these facts to the respondent No. 1.

5. Being aggrieved by the action on the part of respondent No. 1 in revising the select list, thereby deleting the name of the petitioner and including the name of respondent No. 2, the petitioner approached this Court.

6. The petitioner also filed an additional affidavit, stating therein that the selection process involved only oral interviews. It is further stated in the said affidavit that only two questions were asked in the oral interview i.e. as to who was the Guardian Minister of Akola and as to who is the MLA of Murtizapur. The petitioner has stated in the affidavit that he had replied both the questions correctly and was confident about the selection. The petitioner has submitted in the said affidavit that there was no criteria for allotment of marks. An affidavit in reply was filed on behalf of the respondent No. 1. In the said affidavit, it is stated that the two candidates, namely, (i) Vijay Shaligram Lokhande and (ii) Kisan Sukhdeo Lokhande appeared for the interview on 30th September, 2003 along with the other candidates. It is submitted that Shri Vijay Shaligram Lokhande who belongs to Scheduled Tribe secured 104 marks whereas the petitioner has secured only 51 marks. It is stated that, however, due to oversight the name of the petitioner was shown in the select list published on 3rd October, 2003 instead of the name of Vijay Shaligram Lokhande, who was the second highest in the order of merit. It is submitted that accordingly the said mistake was rectified by publishing another select list on 6th October, 2003. It is the contention of the respondent No. 1 that this mistake has occurred due to common surname i.e. Lokhande. It is stated that the petitioner was not successful in the selection process on merit and as such the petition deserves to be dismissed.

7. Looking into the nature of allegations, we had directed the learned Assistant Government Pleader to produce the original record, for the perusal of the Court. From the perusal of the record, it was seen that the criteria for selection was solely on the basis of viva voce test.

8. We have, heard Shri N.P. Dhote, the learned Counsel appearing on behalf of the petitioner, Shri D. B. Yengal, learned Assistant Government Pleader appearing on behalf of the respondent No. 1 and Shri J. B. Kasat, learned Counsel appearing on behalf of the respondent No. 2.

9. In the present case, the selection process was based solely on the basis of viva voce examination. The posts for which selection was made were of Class-Ill cadre. The question, therefore, that arises for consideration in the present Writ Petition is, as to whether it was permissible for respondent No. 1 to fill in the said post by adopting a selection process, which involved assessment of the candidates on hundred percent viva voce test.

10. No doubt, in a given case, the selection can be made solely on the basis of an assessment of oral interview. The same would depend upon the nature of the post which is sought to be filled in.

11. As held by the Apex Court in the case of Lila Dhar v. State of Rajasthan and Ors., , in the case of service to which recruitment has necessarily to be from persons of mature personality, interview-test may be the only way, subject to basic and essential academic and professional requirements being satisfied. The Apex Court in the aforesaid case has held that, to subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons.

12. However, the question would be as to whether the posts which are sought to be filled in the present case are required to be filled from the persons having such a matured personality. As already stated hereinabove, the posts are class-Ill posts and the candidates are the fresh candidates.

13. While considering the selection process of the Haryana Public Service Commission for recruitment to the posts in Haryana Civil Service (Execution Branch) and Allied Services, their Lordships of the Apex Court in the case of Ashok Kumar Yadav v. State of Haryana, have found allocation of the percentage of marks as 33.3% in case of ex-service officers and 22.2% in case of other candidates, to be unreasonable and has held the selection process to be arbitrary.

14. The Apex Court in the case of Jasvinder Singh and Ors. v. State of J and K and Ors., has held that it was not necessary in every case that the allocation of marks for viva voce have to be up to the 12.2 percentage. The Apex Court held that, what is required is that the allocation of marks as such should not be with an oblique intention or so arbitrary as capable of being abused and misused in its exercise.

15. No doubt that the appointing authorities must be free to adopt any procedure for selection of candidates, but, however, the said principle cannot be permitted at the cost of fair play, good conscience and equity.

16. The Apex Court in the case of Praveen Singh v. State of Punjab and Ors., reported in AIR 2001 SC 152, while considering the selection for the post of Block Development and Panchayat Officer held that the recruitment to the said post on the basis of vova vice test only was not permissible. Taking into consideration the nature of the job, the Apex Court has held that neither the job requires mature personality nor the recruitment should be on the basis of interview only. Having regard to the nature and requirement of the concerned job, their Lordships of the Apex Court have observed thus :--

"While it is true that the administrative or quasi judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural aspect but that does not however mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity."

17. From the facts of the present case, it will be seen that the entire selection process was based on the assessment on the basis of viva voce test only. From the proceedings of the selection committee, it also came to our notice that the senior members of the committee like the Collector or the Chief Executive Officer of Zilla Parishad had not participated in the selection procedure. The selection was thus left at the whims of junior officers who were members of the selection committee.

18. The Apex Court in the case of Lila Dhar v. State of Rajasthan (cited supra), has observed thus :--

"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 favouritism. 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."

19. From the record and proceedings of the present selection process, it is clear that the selection process was of such a nature, that it gave unfettered discretion in the members of the selection committee, to choose any candidate of their choice. There were no guidelines, so as to guide the members of the committee in the manner in which the candidates were to be assessed in the oral test. In any way, we do not feel that the nature of the posts, for which the selection was made, were such as could be selected only on the basis of assessment on viva voce test. Since the posts sought to be filled in were Class-Ill posts, it was necessary to have assessed the candidates on the basis of written test and only after the candidates cleared the written test, the final selection process could have been done on the basis of assessment on written and oral examination, in the proportion permitted by the Apex Court in its various pronouncements.

20. In that view of the matter, we are of the considered view that the selection process which is based on hundred per cent viva voce test is unreasonable and leads to arbitrariness.

21. We, therefore, quash and set aside the entire selection process and direct the authorities to hold the selection for the present post keeping in mind the aforesaid observations. Rule is made absolute in aforesaid terms with costs.