Pandurang Gangadhar Sawant And ... vs The State Of Maharashtra And ...
2015 Latest Caselaw 132 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                           BENCH AT AURANGABAD

                       WRIT PETITION NO. 10455 OF 2014




                                                  
                                     WITH
                       CIVIL APPLICATION NO. 166 OF 2015


     1.    Pandurang s/o Gangadhar Sawant,




                                                 
           Age 25 years, Occ. Nil,
           R/o. Kashinath Nagar,
           near House of Shri Gadge,
           Pangri Road, Beed




                                         
     2.    Mubin Khan s/o Gulam Mohd. Pathan,
           Age 42 years, Occ. Nil,
                       
           R/o at Post Ajmernagar
           Belepeer, Beed

     3.    Ankush s/o Rama Pawar,
                      
           Age 27 years, Occ. Nil,
           R/o. C/o. Sainath Dresses,
           Mondha Road, Wadwani,
           Taluka Wadwani, Dist. Beed
      


     4.    Pushpa d/o Arjun Mhaske
           Age 27 years, Occ. Nil,
   



           R/o. C/o. Mohan Rambhau Ukande,
           Burud Galli, Ravivar Peth,
           Beed, District Beed.                            ...Petitioners





                  versus

     1.    The State of Maharashtra
           Through it's Secretary,
           Revenue and Forest Department,
           Mantralaya, Mumbai 32





     2.    The District Collector, Beed

     3.    The District Selection Committee,
           Through it's Member Secretary,
           & Resident Deputy Collector, Beed.              ...Respondents

                                         .....
     Mr. Hemant S. Surve, advocate for the petitioners
     Mr. K.G. Patil, A.G.P. for respondents
                                         .....




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                                        CORAM : S. V. GANGAPURWALA AND




                                                                             
                                                V. K. JADHAV, JJ.

Date of Reserving

the Judgment : 26.06.2015

Date of pronouncing the Judgment : 14.08.2015

JUDGMENT (PER V. K. JADHAV, J.) :-

1. Rule. Rule returnable forthwith. By consent, heard finally.

The brief facts, giving rise to the present writ petition, are as under:-

2. On 7.3.2012, the respondent District Collector, Beed issued an

advertisement for filling up 46 clerical posts, 59 posts of Talathi and 12

posts of Peon. In the said advertisement, it was specifically stated that

selection list would be prepared on the basis of written examination of 200

marks, to be conducted by the selection committee. From 1.4.2012 to

8.4.2012, the admit cards/hall tickets were issued to the respective

candidates, including the petitioners by the Selection Committee. The

question papers of written examination were framed by the Selection

Committee under the chairmanship of the District Collector. On 8.4.2012,

the written examination was conducted by the Selection Committee. In due

course, to cross-check the correctness of result sheet, an answer key was

also published by the Selection Committee and after considering objection

raised to the answer key, revised answer key was also published by the

Selection Committee. After entire process of selection was finalized, the

Selection Committee published the final select list on 16.6.2012. The

petitioner Nos. 1 and 2 came to be selected as Clerk-cum-Typist while

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petitioner Nos. 3 and 4 came to be selected as Talathi. On 25.6.2012, the

petitioners were asked to attend the office for verification of documents and

the same was done on that day. After entire process was over, the further

process was stalled due to certain complaints.

3. On 1.7.2012, the new incumbent was posted as District Collector in

place of earlier incumbent. It appears that certain journalists approached

the newly posted District Collector and pointed out certain malpractices in

conduct of the selection process. Thus, the newly posted District Collector

passed an order of stoppage of issuance of appointment orders to the

candidates. The District Collector, thereafter appointed a sub committee

consisting of five officers from the Collectorate at Beed, to submit a report

about correctness of earlier selection process undertaken by the Selection

Committee. Except the resident Deputy Collector, no other member from

the Selection Committee was appointed in the aforesaid sub committee as

member.

4. The said sub committee has ultimately submitted its report on

6.8.2012. The sub committee, has referred several points in the report.

Prominent amongst them, that the question papers set out by the Selection

Committee were not in consonance with the Government Resolution dated

19.10.2007, which prescribes number of questions for each subject. The

Additional District Collector, who headed the sub committee, and 3 other

Deputy Collectors did sign the report, however, the resident Deputy

Collector refused to sign on the said report. Consequently, the District

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Collector, has asked for specific report of the resident Deputy Collector, in

this regard. Thus, the resident Deputy Collector, has rendered his

independent report dated 9.8.2012. The District Collector, thereafter,

forwarded the report of the resident Deputy Collector to other members of

the sub committee and asked them to offer their comments. Accordingly, a

detail noting sheet was prepared by the three Deputy Collectors, who were

the members of the sub committee.

5.

In the meanwhile, certain candidates had approached the Divisional

Commissioner, in this regard. In the result, the Divisional Commissioner

had asked for explanation from the District Collector. The District Collector,

has tendered his explanation vide communication dated 15.9.2012 and

pointed out the aforesaid reports submitted by the sub committee

appointed by him. According to the District Collector, the selection process

was faulty, as sub committee has reported to him that there was non-

compliance of condition prescribed in Government Resolution dated

19.10.2007 in respect of number of questions to be framed in selected

subject. The Dist. Collector, by communication dated 21.8.2012, had also

motioned the Government asking for cancellation of entire selection

process.

6. After the District Collector made recommendation for

cancellation of entire selection list, the Divisional Commissioner

disassociated himself from the observations and left the decision to

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be taken by the Government. Till that time, certain candidates also

approached the concerned Minister and the Chief Minister making a

grievance in that regard. Consequently, the Deputy Secretary came

to be deputed for verifying the factuality with a direction to submit a

report to the concerned Minister. Thus, the Deputy Secretary,

alongwith a team of at least seven other officials, once again re-

assessed the entire happenings and a detail noting sheet was

prepared. Thereafter, conclusive decision was taken to remand the

matter back to the District Collector and it was left to the District

Collector to take decision on the selection process already

concluded. The District Collector, thereafter once again convened a

meeting of the Selection Committee and it was concluded in the said

meeting that the selection process was not in conformity with the

guidelines on the subject. Thus, entire selection process was

cancelled.

7. Thereafter, in all 21 candidates, being aggrieved by the

decision of the District Collector, in which 11 candidates were from

Clerk-cum-Typist category while others were from Talathi category,

filed Original Application before the Maharashtra Administrative

Tribunal at Mumbai. The present petitioners were also the applicants

in the said Original Application filed before the Maharashtra

Administrative Tribunal. The petitioners in the Original Application

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claimed that there was discrimination meted out to them and the

others qua the yardsticks of posing questions in the question papers.

It was specific contention of the petitioners that the decision of posing

question in the question papers was necessarily at the behest of the

Selection Committee and even assuming that there was flaw in

framing number of questions of a particular subject, still the

candidates cannot be held responsible for the same. The Tribunal

at Principal Seat at Mumbai, by judgment and order dated

10.10.2013 in Original Application No. 799 of 2013, on the basis of

the reasoning, was pleased to uphold the decision of the Collector of

cancellation of selection process.

8. Feeling aggrieved and dissatisfied with the order passed by the

Maharashtra Administrative Tribunal, Mumbai, thereby disallowing

the Original application of the petitioners and other similarly situated

candidates, the petitioners/candidates from the select list approached

this Court by filing the present writ petition.

9. The learned counsel for the petitioners submits that the

Government Resolution dated 19.10.2007 prescribes number of

questions for a particular subject. The candidates like the petitioners

had no role whatsoever in drafting the question papers, as they were

only to answer the questions. The learned counsel further submits

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that expecting the particular number of question for a particular

subject is the guidelines given in the Government Resolution. These

guidelines are meant for the officials to be followed, who are

connected with the recruitment process. Thus, any alteration in the

number of questions cannot become detrimental to the entire

selection process itself. The learned counsel further submits that the

committee framing excess/less number of questions in any particular

subject was something, which can be said to be an "irregularity" and

necessarily not an "illegality". These lacunae in drafting the question

paper has to be attributed to the selection committee and not to the

candidates. Therefore, cancellation of entire selection process

cannot be said to be a remedial measure to overcome the said

irregularity. The learned counsel thus submits that this aspect is not

at all considered by the Tribunal while adjudicating the Original

Application. Learned counsel also submits that preparation of the

select list was composite act of duly constituted selection committee

and if the committee had taken a decision and finalized the select list,

the subsequently posted District Collector had no powers to assess

the decision taken by the selection committee and further

interference by the newly posted District Collector was uncalled for.

The Tribunal has failed to appreciate the recommendation given by

the Divisional Commissioner as well as the Secretariat of the

Government. Both these superior Officers of the District Collector

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have concluded that such approach, which was otherwise affecting

the candidates, need not be taken. In shape of reviewing earlier

decision, the District Collector has set at naught the earlier selection

process, which is impermissible in law.

10. The learned counsel for the petitioner submits that the select

list pertains to the year 2012. The petitioners are waiting for 2 long

years owing to the reversal of the selection process. The petitioners

have approached the Court at the earliest possible juncture. The

learned counsel thus submits that the decision of respondent No.3

dated 13.3.2013 to cancel the selection list for the post of clerk-cum-

typist as well as Talathis on the establishment of respondent No.2 is

required to be quashed and set aside and at the same time, the

impugned decision dated 10.10.2014 of the Tribunal at its Principal

Seat at Mumbai, rejecting the Original Application No. 799 of 2013 is

also liable to be quashed and set aside. The learned counsel for the

petitioners lastly submits that respondent No. 2 and 3 may be

directed to issue appointment orders to the petitioners for the post of

clerk-cum-typist and Talathis as is applicable as per the select list

prepared by the selection committee-respondent No.3 on 28.6.2012.

11. The learned counsel for the petitioners, in order to substantiate

his arguments, places reliance on the following cases:

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I) Inderpreet Singh Kahlon vs. State of Punjab and Harayana, reported in 2006 (11) SCC 356

ii) East Coast Railway and another ; K. Surekha vs. Mahadev Appa Rao and others, reported in 2010 AIR (SC) 2794.

iii) K. Manjusree vs. State of A.P. and another, reported in

AIR 2008 SC 1470.

iv) Ramesh Kumar vs. High Court of Delhi and Another, reported in AIR 2010 SC 3714.

v) Rajesh Kumar and others etc. vs. State of Bihar and others etc. with connected case, reported in AIR 2013 SC

2652.

vi) Baban Sadashiv Waghmare and others vs. The State of

Maharashtra, writ petition No. 2707 of 2008 decided on 13.8.2008, Bombay High Court, Aurangabad Bench.

vii) Jahabhai Dangarbhai Rathod vs. State of Gujarat and Ors, reported in (1995) 1 GLR 427

12. The learned A.G.P. for the respondents submits that the select

list was based on written examination which was not in strict

adherence to the provisions of Government Resolution dated

19.10.2007. Thus, the action of respondents to cancel the selection

process is not an arbitrary action. The learned A.G.P. further submits

that cancellation of selection list was for valid reasons. The learned

A.G.P. has supported the decision rendered by the Tribunal. The

learned A.G.P. lastly submits that the writ petition is devoid of any

merits and the same is required to be dismissed with costs.

13. Multiple choice tests have been a staple of candidate

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assessment for decades and it is likely that they will remain so for a

long time to come. In multiple choice test, the candidate select an

answer from several alternative answers from each question. The

biggest advantages of multiple choice tests include that they are

extremely easy to grade, and it is simple for the Selection Committee

to identify where the candidates at large struggle. The multiple

choice tests conducted properly are another tool for Selection

Committee to measure learning and reflection. The biggest

advantage of multiple choice examination is that it can assess both

knowledge as well as application of knowledge. These types of tests

mainly focus on detail knowledge.

14. The Apex Court in the case of Lila Dhar vs. State of

Rajasthan and others, reported in AIR 1981 SC 1777 has dealt

with the question as to what is ideal mode of selection to public

service i.e. by written examination, by oral tests or by combination of

both and what is proper relative weight that should be attached to the

written examination and the oral test. On this backdrop, in para 4 of

the said judgment, the Apex Court has observed thus:-

"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 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

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be accepted almost universally as the gateway to public services". "The

ideal in recruitment is to do away with unfairness". United Nations Handbook on Civil Service Laws and Practice; "Competitive

examinations were the answer to the twin problems represented by democracy and the requirements of good administration. They were the means by which equality of opportunity was to be united with efficiency.. By this means favouritism was to be excluded and the goal of securing

the best man for every job was to be achieved". Public Personal Administration by O. Glenn Stahl "Open competitive examinations are a peculiarly democratic institution. Any qualified person may come forward. His relative competence for appointment is determined by a neutral,

disinterested body on the basis of objective evidence supplied by the candidate himself. No one has "pull"; everyone stands on his own feet.

The system is not only highly democratic it is fair and equitable to every competitor. The same rules govern, the same procedures apply, the same yardstick is used to test competence". Introduction to the study of

Public Administration by Leonard White.

The Apex Court has observed in the aforesaid judgment that

the object of any process of selection for entry into public service is

to secure the best and the most suitable person in the job, avoiding

patronage and favouratism. Any form of written test possess certain

administrative advantages over the oral and performance types. The

oral test has long served as a basic selection tool in private

employment but has been more slowly accepted in the public field.

That is because the difficulty in developing a valid and reliable oral

test, the difficulty of securing a reviewable record of an oral test and

public suspicion of the oral as a channel for the exertion for securing

public employment. The reliability of oral tests, even under the best

of conditions, tends to be lower than that of the well designed written

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test, which can assess the intellectual competence.

15. In the present case, the selection process for the post of Clerk-

cum-Typist and Talathis has been cancelled mainly on the ground

that the structure of the question paper of the written examination

was not in consonance with the Government Resolution dated

19.10.2007. On this backdrop, we have carefully gone through the

Government Resolution dated 19.10.2007. It appears that as per the

aforesaid Government Resolution, only written examination is

contemplated for the post of Clerk-cum-Typist and Talathis and no

oral examination/interview has been prescribed. As per clause 6 of

the said Government Resolution dated 19.10.2007, instructions have

been given as to how the written examination is to be conducted for

group-C posts. For the post of Clerk-cum-Typist, the minimum

educational qualification is S.S.C. whereas for the post of Talathi, the

minimum qualification is degree from recognized University.

Consequently, for the post of Clerk-cum-Typist, the written

examination will be of the standard of S.S.C. and there will be 50

marks each for Marathi, English, General Knowledge and

Arithmetics, totaling 200 marks. So far as the post of Talathi is

concerned, for which degree is the minimum qualification, the

standard of written examination is that of the degree examination

from recognized University, except the subject of Marathi for which

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the standard of written examination is that of H.S.C. (12th class).

50% marks each would be provided for Marathi, English, General

Knowledge and intelligent test totaling to 200 marks. It appears that

detail and specific instructions have been provided in Government

Resolution dated 19.10.2007 regarding the manner in which written

examination has to be conducted for the post of Clerk-cum-Typist

and for the post of Talathi.

16.

However, the marks actually allotted to each subject in the

examination for the post of Clerk-cum-Typist and for the post of

Talathi are shown in the tabular form, as reproduced below:-

For the post of Clerk-cum-Typist

Sr. Subject Marks as Marks as Difference in No. per GR per marks dated Question

19.10.2007 paper

1. Marathi 50 58 +8

2. English 50 46 -4

3. General Knowledge 50 56 +6

4. Mathematics 50 40 -10

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For the post of Talathi

Sr. Subject Marks as Marks as Difference in No. per GR per marks dated Question 19.10.2007 Paper

1. Marathi 50 54 +4

2. English 50 6 -44

3. General Knowledge 50 74 +24

4. Intelligence Test 50 66 +16

17. It appears that equal weightage in all four subjects for both the

tests have been given to secure the best and most suitable person in

the job. So far as the post of Clerk-cum-Typist is concerned, less

marks are allotted for the important subject of Maths and more marks

are allotted for Marathi subject which is comparatively easy to solve.

For the post of Talathi, for English subject only six marks are allotted

and more marks are allotted for general knowledge and intelligence

test. It also appears that even though there is no Maths subject

prescribed for the post of Talathi, for the intelligence test, the

questions have been framed from Maths subject. Consequently,

there is gross violation of instructions as contained in the

Government Resolution dated 19.10.2007. It appears that the said

instructions were recommended by the experts in the field after

taking into consideration the post to be filled in. It is to be repeated

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here that the selection was to be made on the basis of the written

examination only and there is no way to assess the performance of

the candidates except the written examination.

18. After the written examination was held, the result was

prepared, but the same was not displayed as the erstwhile Collector,

Beed, stood retired on 30.06.2012 and the new incumbent joined on

30.06.2012 itself.

ig Thereafter, though the lists of the selected

candidates were published on the notice board and even the

appointment orders were signed by his predecessor, however,

subsequently, the same were not issued. The respondent No. 2

District Collector (new incumbent) took a review of the entire

selection process. He had taken a decision to review the entire

selection process as he had received some oral complaints as well

as news were published in the local news papers. Consequently, the

respondent District Collector set up a Committee headed by the

Additional Collector, Beed. The said Committee had submitted a

preliminary report to respondent No. 2 District Collector. The

preliminary report was signed by the Additional Collector and three

other members of the Committee. However, the Resident Deputy

Collector, who was also a member of the Committee, refused to sign

on the said report. Consequently, the respondent District Collector

has asked for a specific report of the Resident Deputy Collector in

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this regard. Accordingly, the Resident Deputy Collector then

tendered his own report. Since the earlier report was a preliminary

report, the respondent No. 2 District Collector thought it fit to appoint

a Committee comprising of three officers to make a detailed enquiry

in the entire selection process. Accordingly, the three Deputy

Collectors submitted a detailed report to respondent No. 2 District

Collector on 17.08.2012. The Resident Deputy Collector, who had

refused to sign the earlier report (preliminary report), while tendering

his independent report, did not comment on the structure of the

question papers of the written examination for the post of Clerk-cum-

Typist and Talathi under the pretext that the question papers for the

said post were prepared by the erstwhile District Collector. The main

finding of the said Committee comprising of three Deputy Collectors

was that the question papers were not set up as per Government

Resolution dated 19.10.2007. As per the findings of the said

Committee, the recruitment process to fill up the posts of Peon was

appropriate, however, so far as the recruitment of Talathis and Clerk-

cum-Typists were concerned, the structure of the question papers

was not in consonance with the Government Resolution dated

19.10.2007.

19. The respondent District Collector, based upon the report of the

said Committee, submitted his own report to the respondent No. 1

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Additional Chief Secretary, Revenue and Forest Department,

highlighting therein the said finding of the Committee about the

framing of the questions being not in consonance with the

Government Resolution dated 19.10.2007 and sought permission to

quash, cancel and set aside the earlier recruitment process and

examination held to fill up the posts of Clerk-cum-Typists and

Talathis and also sought permission to hold a fresh examination.

20.

We have carefully gone through the report submitted by the

three Deputy Collectors dated 17.08.2012, the report of the Resident

Deputy Collector, the noting sheet prepared by the Deputy Secretary

and his team and finally, the decision taken by the District Selection

Committee. It appears that, unequivocally, all the Committees as

aforesaid, have highlighted in their reports that the structure of the

question papers, so far as the recruitment of Talathis and Clerk-cum-

Typists is concerned, were not in consonance with the Government

Resolution dated 19.10.2007. It also appears that the respondent

District Collector has not taken the decision of cancellation of the

selection process alone. The respondent District Collector has

appointed a Committee headed by the Additional Collector and also

appointed another Committee comprising of three Deputy Collectors

and directed to make a detailed investigation in the matter. On

receipt of the said reports and even after considering the report of

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the Resident Deputy Collector, the respondent District Collector

submitted his report to the Divisional Commissioner as well as to the

Government for taking appropriate action in the matter. The

respondent District Collector, when the matter was remanded by the

Government for taking appropriate decision in the matter, convened

a meeting of the District Selection Committee and on considering the

entire reports and after due deliberations, took a decision to cancel

the earlier recruitment process.

21. Though the candidate who has passed examination or whose

names appear in the selection list does not have indefeasible right to

be appointed, yet appointment cannot be denied arbitrarily, nor can

selection list be cancelled without giving any justification. The Court

is competent to give appropriate directions where decision is found to

be arbitrary. At the same time there should not be undue interference

by way of judicial review of the decision to cancel the recruitment

process when there was some material for doing so. Though it

depends upon the facts and circumstances of each case, the

essential requirement, however, is that the selection committee

should have taken decision after due application of mind instead of

acting mechanically or impulsive. In the case in hand, when the

Government relegated the matter to the respondent District Collector

for taking appropriate decision in the matter, the respondent District

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Collector convened a meeting of the District Selection committee and

on considering entire reports, as discussed above, and after due

deliberations, took a decision to cancel the earlier recruitment

process. It appears that, members of the selection committee have

thoroughly discussed that the structure of the question papers so far

as the recruitment of Clerk-cum-Typist and Talathi is concerned,

were not in consonance with the Government Resolution dated

19.10.2007. As discussed in the foregoing paras, the object of any

process of selection for entry in the public service is to secure best

and most suitable person for the job. The selection based on merit

and carried out objectively is essential foundation of efficient public

servant. The selection was to be made on the basis of written

examination only and there was no way to assess the performance

of the candidates except the written examination. In our considered

opinion, the faulty structure of the question papers, which was not in

consonance with the guidelines given in the Government Resolution

dated 19.10.2007, defeated the very object of finding out best and

most suitable person in the job.

22. The learned counsel for the petitioners has cited the number of

cases in support of his arguments. In most of the cases, cited by the

learned counsel for the petitioners, malafides in the selection process

have been alleged and said question was dealt with by the Apex

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Court elaborately. In the case in hand, the selection process was

found in violation of the prescribed procedure. It was clearly

mentioned in the advertisement dated 7.3.2012 that the selection

would be made in accordance with the Government Resolution dated

19.10.2007. There is clear evidence and same is also highlighted by

all enquiry committees that the selection was not in accordance with

the guidelines given in the Government Resolution dated

19.10.2007, though strict adherence was necessary.

23. In the case of Inderpreet Singh Kahlon vs. State of Punjab

and Harayana, (referred supra), the cancellation of entire selection

process both of executive and judicial Officers was the subject matter

of challenge on the ground of corruption in selection process. On the

basis of the report of the vigilance bureau, the Full Bench of the High

Court of Punjab and Haryana, made the observations that the

question papers were leaked to the candidates and marks awarded

to the candidates were manipulated and upgraded. It was also

observed that the instructions were given to the examiner to give

highest marks. The High Court, while examining the record and

proceedings, found that there had been a large scale tampering of

marks in some of the answer sheets and that selection had not been

made on merits. The Apex Court in para 122 has made the

following observations:-

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"122. The High Court has not considered the case in the proper perspective. The consequences of en masse cancellation would

carry a big stigma particularly on cancellation of the selections which took place because of serious charges of corruption. The question arises whether for the misdeeds of some candidates,

honest and good candidates should also suffer on en masse cancellation leading to termination of their services? Should those honest candidates be compelled to suffer without there

being any fault on their part just because the respondents find it

difficult to segregate the cases of tainted candidates from the other candidates? The task may be difficult for the respondents, but in my considered view, in the interest of all concerned and

particularly in the interest of honest candidates, the State must undertake this task. The unscrupulous candidates should not be allowed to damage the entire system in such a manner where

innocent people also suffer great ignominy and stigma."

24. In East Coast Railway and another; K. Surekha vs.

Mahadev Appa Rao and others (referred supra), in para 13, the

Apex Court has made the following observations:-

"13. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ Court. If any such decision is indeed found

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to be arbitrary, appropriate directions can be issued in the matter."

In the above cited case, the order of cancellation of typing test

was passed by the competent authority without giving any reason.

On this backdrop, the Apex court observed that, in absence of

reason in support of the order, it is difficult to assume that the

authority had properly applied its mind before passing the order of

cancellation of typing test.

25. In the case of K. Manjusree vs. State of A.P. and another

(refereed supra), two of the candidates, whose names were found in

the first list and who got excluded in the second list, approached the

High Court praying for a declaration that the said action in preparing

the select list by prescribed minimum qualified marks in the interview

was arbitrary and illegal and sought directions to re-draw the

selection list without adopting minimum qualified marks in the

interview. The said writ petitions were dismissed by the High Court.

The Apex Court while examining the said issue has observed that

the the introduction of the requirement of minimum marks for

interview, after the entire selection process (consisting of written

examination and interview) was completed, would amount to

changing the rules of the game after the game was played, which is

clearly impermissible.

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26. in the case of Ramesh Kumar vs. High Court of Delhi and

another (referred supra) the High Court of Delhi and Government

of N.C.T. of Delhi were to offer appointment to the petitioners in the

cadre of District Judge. There was no challenge to the validity of the

Rules in the writ petitions, however, the question was raised as to

whether the Rules enabled the High Court to fix the minimum

benchmark in the interview. The Apex Court in the facts and

circumstances of that case, held that it was not permissible for the

High Court to change the criteria of selection in the midst of the

selection process.

27. In the case of Rajesh Kumar and others etc. vs. State of

Bihar and others etc. with connected case (referred supra), the

challenge was raised to the process of evaluation of answer sheets

on the ground that "Model Answer Key" was wrong. The High Court

has directed the Bihar staff selection commission to conduct fresh

examination and re-draw the merit list on that basis and for those

who have already been appointed on the post of the earlier

examination, fresh examination has been directed by the High Court.

The Apex Court while examining this issue in para 18 of the

judgment has made following observations:-

"18. There is considerable merit in the submission of Mr. Rao. It

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goes without saying that the appellants were innocent parties who

have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any

fraud or mal-practice against the appellants who have served the State for nearly seven years now. In the circumstances, while interse merit position may be relevant for the appellants, the ouster

of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the

basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to

issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that

basis according to their interse position on the merit list."

In the above cited case, the Apex Court has considered the

case of the appellant, who had served the State for nearly 7 years.

In the case in hand, the facts are altogether different. The

Government Resolution prescribes a particular mode of selection

and strict adherence was required to be given to it. Further more,

pursuant to the selection process, no appointment order was given

to any of the candidates including the petitioners.

28. In the case of Baban Sadashiv Waghmare and others vs.

The State of Maharashtra (referred supra), after oral interviews

were held and the selection process had come to a near conclusion,

a complaint was received from the President, Zilla Parishad alleging

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therein the malpractice committed during the examination.

Consequently, the authority recommended fresh selection process to

avoid any suspicion regarding transparency of selection process.

The Division Bench of this Court while examining this issue has

observed that the allegation regarding lack of transparency and

confidentiality and fairness of selection process is without substance.

29. In the case of Jahabhai Dangarbhai & Anr vs. State of

Gujarat and Ors (referred supra), the group of petitions came to be

filed before Gujarat High Court for issuance of directions to the

respective Panchayat to operate selection list pursuance to the

selection and inclusion of names of the petitioners in the select list

duly prepared. In the said case, the issue was raised before the

Court that unless the select/wait lists are fully exhausted, the

authorities whether should be permitted to prepare any fresh select

list.

30. In the above cited cases, altogether different issues were

raised and considering the facts and circumstances of each and

every case, those issues were dealt with by the Apex Court or the

High Courts. In the case in hand, the selection process was

cancelled due to violation of prescribed procedure. It is not a matter

of controversy that the selection was not in accordance with the

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Government Resolution dated 19.10.2007 though strict adherence

was necessary. The selection committee headed by the respondent

District Collector after considering the reports of the committees, has

taken unanimous decision in the matter. In the light of above, none

of the case cited above, can be made applicable to the facts and

circumstances of the present case.

31. We are conscious of the fact that the petitioners are not at

fault, as structure of question papers are not in consonance with the

Government Resolution dated 19.10.2007. However, if such

examination is saved, it would be in the nature of denial of the claim

of more deserving candidates though undetected. It would result in

some inconvenience to all and extra time would be consumed for

fresh examination. However, same is justifiable to find out the most

suitable and deserving candidates for the public employment. It was

brought to our notice during the course of arguments that fresh

selection process has been commenced and the petitioners still

eligible to apply.

32. In view of the above discussion, we are not inclined to interfere

in the impugned decision of cancellation of selection process for the

post of Clerk-cum-Typist as well as Talathi on the establishment of

respondent No.2. We do not find any error in the impugned decision

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dated 10.10.2014 of the Tribunal, at its Principal Bench at Mumbai, in

Original Application No. 799 of 2013. We accordingly pass the

following order:-

ORDER

I) Writ petition is hereby dismissed. Rule discharged. In

the circumstances, there shall be no orders as to costs.

33. In view of disposal of writ petition, pending civil application is

also disposed of.

            ( V. K. JADHAV, J.)                      ( S. V. GANGAPURWALA, J. )

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