Bombay High Court
Rahul Annasaheb Shende vs Tata Institute Of Social Sciences ... on 12 April, 2023
Bench: Sandeep V. Marne
2023:BHC-OS:2847-DB
Rane 1/15 WP(L)-30532-2022
12 April, 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODG.) NO. 30532 OF 2022
Rahul Annasaheb Shende
(son of Annasaheb Laxman Shende)
date of birth : 13.01.1990, Age 32 yrs
08 months, working as Engineer
(Contractual Position) in the office of
Registrar, Tata Institute of Social
Sciences, V.N. Purav Marg, Deonar,
Mumbai-400 088 and residing at
Service Staff Quarters (SSQ), Naoroji
Campus, Tata Institute of Social Sciences
Deonar, Mumbai-400 088, State of Maharashtra
....Petitioner
V/s.
1. Tata Institute of Social Sciences
Through Director, V.N. Purav Marg,
Deonar, Mumbai-400 088.
2. Tata Institute of Social Sciences
Through : The Registrar, V.N. Purav Marg,
Deonar, Mumbai-400 088.
3. Deputy Registrar, Tata Institute of
Social Sciences, V.N. Purav Marg, Deonar
Mumbai-400 088. ....Respondents
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Appearances :
Mr. Rahul Walia a/w. Ms. Asmita Pendharkar, Advocate for the
petitioner.
Mr. Rakesh Singh a/w. Ms. Heena Shaikh i/by. M.V. Kini, Advocate for the
respondents.
___________________________________________________________________________________
CORAM : S.V. GANGAPURWALA, ACTING C.J. &
SANDEEP V. MARNE, J.
Judg. Resd on : 3rd April, 2023.
Judg. Pron. on : 12th April, 2023.
JUDGMENT (Per : Sandeep V. Marne, J.)
1. Rule. Rule made returnable forthwith. With the consent of
the parties, petition is taken up for final hearing.
2. Petitioner is aggrieved by the result of the selection process
in which no candidate is found suitable for the post of Assistant Engineer
in Tata Institute of Social Sciences. Petitioner claims that interview has
erroneously been conducted against the provisions of the Rules in place
of a Skill Test and even though he has secured substantially higher
marks in the Written Test, he is declared 'not selected' on the ground of
award of lesser marks in the interview. This has led to non-filling up of
the advertised posts of Assistant Engineer. Petitioner therefore prays
for appointment on the post of Assistant Engineer.
3. Brief facts of the case are that, Petitioner is a Civil Engineer
having educational qualification of B.Tech. After putting in experience in
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private organization during the years 2011 to 2018, he participated in
the selection process initiated by Tata Institute of Social Sciences (TISS)
for appointment as Assistant Engineer on contractual basis in the year
2018 and after being declared successful, he came to be appointed as
Engineer on contract basis for a period of one year vide order dated
27.07.2018. He was allotted the service staff quarters by TISS. At the
end of tenure of one year, his services were extended upto 4.10.2020
vide order dated 1.10.2019. Further extension was granted upto
4.10.2021 by order dated 19.10.2020. His services were again extended
upto 4.10.2022 vide order dated 25.10.2021.
4. An advertisement was issued by the respondent-Institute
for filling up various posts, including one post of Assistant Engineer on
regular basis. In the advertisement, the post of Assistant Engineer was
classified as Group-B Level-7 post. Petitioner applied in pursuance of
the advertisement. Respondent-institute published syllabus and
procedure for filling up the post of Assistant Engineer. The selection was
to comprise of written test of 100 marks with weightage of 50%. The
Skill Test/Interaction of 50 marks was also scheduled to be conducted
with weightage of 50%. The qualifying marks in the Skill
Test/Interaction was declared as 25. Petitioner appeared for the written
test held on 27.05.2022 and 31.05.2022. He scored 58 marks in objective
paper and 73 marks in descriptive paper and claims to have secured first
rank in the written test. The Skill Test/Interaction was scheduled to be
conducted on 22.6.2022. However, petitioner avers that no Skill Test
was conducted and instead an interview was held, in which he was
awarded only 22 marks which fell short of 3 marks as compared to
qualifying 25 marks. Petitioner has also made certain averments with
regard to the manner in which the interview was conducted. It appears
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that, none of the seven candidates could secure passing marks of 25 in
the interview. Petitioner scored highest marks even in the interview.
However, since he could not cross the barrier of 25 marks, the
respondents declared that no candidate was found suitable and decided
to go for re-advertisement. Petitioner is aggrieved by this action of the
respondents.
5. Appearing for Petitioner, Mr. Walia, the learned counsel
would submit that conduct of interview is in violation of the provisions
of Cadre Recruitment Rules, 2021 (CCR) under which only Skill Test is
required to be conducted of 50 marks with qualifying marks of 25. That
under Rule 22(h), no interview could be conducted for appointment to
Group 'B' and Group 'C' post. That the post of Assistant Engineer being
classified as Group 'B', interview could not have been conducted. He has
taken us through the evaluation sheet, which shows that the Skill Test is
shown to have been held for only 10 marks, whereas remaining 40
marks were allotted to various attributes such as 'Communication Skill',
'Subject Knowledge' and 'Overall Suitability'. He would then place before
us the evaluation sheet in respect of the selection for the post of Deputy
Registrar, which is a class 'A' post, for which interview is permissible to
demonstrate that the attributes 'Communication skill', 'Subject
Knowledge' and 'Overall Suitability' form part of an interview. He would
therefore submit that an interview was conducted for adjudging
suitability of candidates for appointment on Group 'B' post of Assistant
Engineer, which is impermissible. Mr. Walia, would further submit that
the process of interview conducted by the committee was a sham. That
despite securing highest marks in the written test (36.5), the Interview
Committee deliberately awarded lesser marks to petitioner on
extraneous consideration of his younger looks. That one of the members
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of the Interview Committee who has signed the evaluation sheet, was
not even present when the interview was conducted. That petitioner
has been working with the respondent-Institute for last about five years
on the same post and that therefore a conclusion could not have been
reached of he not possessing necessary skills for the post of Assistant
Engineer.
6. Mr. Walia would further submit that interview could
otherwise have not been conducted for such a high weightage of 50%
marks and in support of his contention, he would rely on the judgment of
the Apex Court in the case of Ashok alias Somanna Gowda and another
V/s. State of Karnataka, by its Chief Secretary and Others, (1992) 1 SCC
28 and D.G. V/s. Director General, Indian Council for Agricultural
Research and Others Versus. D Sundara Raju (2011) 6 SCC 605.
7. Per contra, Mr. Rakesh Singh, the learned counsel appearing
for the respondent-Institute would oppose the petition. He would submit
that the petitioner, having participated in the selection process, cannot
now question the procedure adopted for conduct of selection. That the
candidates were made aware about the Skill Test/Interaction being held
for 50% marks and that petitioner did not object to the same. That what
is conducted is not an interview but merely an interaction. That skills of
a candidate to hold a post of Assistant Engineer is determined by
conducting an interaction. That the syllabus for conducting the selection
was also published in advance and petitioner having taken a calculated
chance in the selection process, cannot now turn around and question
the process itself. He would pray for dismissal of the petition.
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8. Rival contentions of the parties now fall for our
consideration.
9. As per the advertisement, the post of Assistant Engineer is
declared as Group 'B' L-7 post. Respondent-institute has formulated Tata
Institute of Social Sciences (T.I.S.S.) Cadre Recruitment Rules (CRRs),
2021, Non-Teaching (including Library) Posts, 2021 (the Rules). Rule-11
deals with the procedure for issuance of advertisement and inviting
applications. Rule-11(III)(e) provides as under :
"Rule.11(III)
(e) ... ... ...
The Institute may conduct written tests at two stages
(I) A qualifying test (Paper I) consisting of the objective-type
questions carrying 100 marks, and
(ii)the Descriptive-type test (Paper II) carrying 100 marks.
The minimum qualifying marks to be secured in Paper I shall be
40%. The answer scripts of the candidates for the descriptive test
shall be evaluated only in respect of those candidates who secure
the minimum qualifying marks in Paper I.
The candidates who secure 50% marks in Paper II shall be called
for the skill test, wherever applicable. The marks allocated for the
skill test shal be 50 and the minimum qualifying marks in the skill
test shall be 25. The merit of the candidates shall be drawn based
on the performance in Paper II (Descriptive test) only subject to
qualifying the skill test. Notwithstanding the above, the Institute
at its discretion may have a single written test and skill test
depending upon the number of candidates, job requirements (such
as posts under Infrastructure and services, Information and
Communication Technology,) Library services etc."
10. Rule -11(III)(f) deals with the manner in which interview
can be conducted. It provides thus :
"(f) The marks allocated for the interview wherever applicable
shall be 50 and the credit shall be added to the credit scored in
Paper-II for the preparation of the merit list."
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(emphasis ours)
11. Rule - 22 deals with the General Terms and Conditions of
Recruitment and sub-rule(h) provides as under :
"Rule-22(h)- In pursuance of the Letter No.19-50/2015-Desk-U
dated 22.12.2015, of the MoE (erstwhile MHRD), there shall be
no interview for appointment to the Group 'C' and 'B' posts
carrying Grade Pay of Rs.4600/- or less. Accordingly, no
interview shall be held for appointment to the Group 'C' and
Group 'B' posts."
(emphasis ours)
Thus, for appointment to Group 'C' and Group 'B' posts, interviews
cannot be conducted under Rule 22(h). As observed above, the post of
Assistant Engineer is undoubtedly a Group 'B' post. There is no denial to
this aspect on the part of the respondent-institute. Thus, for filling up the
post of Assistant Engineer, the selection cannot comprise of interview.
12. At the time of calling the candidates for written test,
respondent-institute published syllabus and procedure and
communicated the same to the candidates. The procedure published by
the respondent-institute was as under :
"Procedure for recruitment to 'B' & 'C' non-teaching posts
GROUP 'B' & 'C'
Sr. No. Marks Minimum Weighta
Mode of Assessment Qualifying ge (%)
Marks
PAPER II -Descriptive 100 50 50.00%
The Candidate to be called for Skill Test subsequent on qualify in
Written Exam
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2 SKILL TEST / INTERACTION 50 25 50.00%
#The answer scripts of the candidates for the descriptive test shall be evaluated
only in respect of those candidates who secure the minimum qualifying marks in
Paper I.
13. The procedure so published does not use the word
'interview' but provides for conduct of 'Skill Test/Interaction' of 50
marks with minimum qualifying marks of 25. Thus, the candidates were
not made aware that an interview would be conducted. On the contrary,
a representation was made to the effect that a Skill Test/Interaction
would be conducted. One may well argue that the candidates were given
some idea about the conduct of interview as the word 'interaction' was
also used in the procedure so published. It is on this ground that Mr.
Singh has strenuously contended that the selection procedure was made
aware to the candidates and that petitioner participated in the same
without any demur. That having participated in the selection process
and having taken a calculated chance, the petitioner now cannot be
permitted to take a volte-face and challenge the selection process.
14. We may first deal with the objection on the part of the
respondent-institute about participation by petitioner in the selection
process and challenging the same after being adjudged unsuccessful. In
Madan Lal v. State of J&K, (1995) 3 SCC 486, it has been held as under :
"9. Before dealing with this contention, we must keep in view the
salient fact that the petitioners as well as the contesting successful
candidates being respondents concerned herein, were all found
eligible in the light of marks obtained in the written test, to be
eligible to be called for oral interview. Up to this stage there is no
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dispute between the parties. The petitioners also appeared at the
oral interview conducted by the Members concerned of the
Commission who interviewed the petitioners as well as the
contesting respondents concerned. Thus the petitioners took a
chance to get themselves selected at the said oral interview. Only
because they did not find themselves to have emerged successful as a
result of their combined performance both at written test and oral
interview, they have filed this petition. 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 : 1986 SCC (L&S) 644 : AIR 1986 SC
1043] 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.
(emphasis ours)
15. Thus, the law is well settled that once a candidate
participates in the selection process, the same cannot be subsequently
challenged by him. However, the Apex Court has carved out an
exception to this principle in several judgments. In Raj Kumar v. Shakti
Raj, (1997) 9 SCC 527 it is held:
16. Yet another circumstance is that the Government had not taken
out the posts from the purview of the Board, but after the
examinations were conducted under the 1955 Rules and after the
results were announced, it exercised the power under the proviso to
para 6 of 1970 Notification and the posts were taken out from the
purview thereof. Thereafter the Selection Committee was constituted
for selection of the candidates. 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 : 1995 SCC (L&S) 712 :
(1995) 29 ATC 603] 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
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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. Thus, we consider that the procedure offered
under the 1955 Rules adopted by the Government or the Committee
as well as the action taken by the Government are not correct in law.
(emphasis supplied)
16. In Ramesh Kumar Vs. High Court of Delhi and Another
(2010) 3 SC 104, the Apex Court held that minimum marks were
prescribed for interview in absence of any statutory requirement and
that in such a case, the question of acquiescence would not arise. In para-
18, the Apex Court has held as under :
18. These cases are squarely covered by the judgment of this
Court in Hemani Malhotra v. High Court of Delhi AIR 2008 SC 2103,
wherein it has been held that it was not permissible for the High
Court to change the criteria of selection in the midst of selection
process. This Court in All India Judges' case (supra) had accepted
Justice Shetty Commission's Report in this respect i.e. that there
should be no requirement of securing the minimum marks in
interview, thus, this ought to have been given effect to. The Court had
issued directions to offer the appointment to candidates who had
secured the requisite marks in aggregate in the written examination
as well as in interview, ignoring the requirement of securing
minimum marks in interview. In pursuance of those directions, the
Delhi High Court offered the appointment to such candidates.
Selection to the post involved herein has not been completed in any
subsequent years to the selection process under challenge. Therefore,
in the instant case, in absence of any statutory requirement of
securing minimum marks in interview, the High Court ought to have
followed the same principle. In such a fact-situation, the question of
acquiescence would not arise."
(emphasis ours)
17. In the instant case, conduct of interview is against the
provisions of Cadre Recruitment Rules, 2021 and therefore mere
participation by petitioner in the selection process would not validate
the same. Even otherwise, it cannot be held with a degree of certainty
that the candidates were made aware in advance about the conduct of
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interview. The procedure published alongwith the syllabus did not
prescribe conduct of interview. What is made known to the candidates
was that a 'Skill Test/Interaction' would be conducted. It cannot be said
that any idea was given to the candidates that an 'interview' would be
held. Therefore, even on this ground, it cannot be said that petitioner
participated in the selection process with a clear idea that an interview
was being held. Therefore, mere participation in the selection by
petitioner cannot be held against him nor for the irregularity committed
by the respondent-institute in the selection process can be overlooked
on the technical ground of the petitioner's participation in the selection.
18. Now we turn to the contention of the respondent-institute
that what is conducted is not an 'interview' but merely an 'interaction' to
judge the skill possessed by candidates to occupy the post of Assistant
Engineer. This contention of the respondent-Institute is successfully
demolished by Mr. Walia by placing reliance on the evaluation sheet of
the Selection Committee for the post of Deputy Registrar. The post of
Deputy Registrar is undoubtedly a Group 'A' post for which holding of
interview is permissible. For the post of Deputy Registrar, the candidates
were awarded marks for Written Test (35), Communication Skill (20),
Subject Knowledge (30) and Overall suitability (50). It is Mr. Walia's
contention that, 'communication skill', 'subject knowledge' and 'overall
suitability' together form part of interview. When we compare the
evaluation sheet for the post of Deputy Registrar with the evaluation
sheet involved in the present case, it is clear that the Selection
Committee did adjudge the candidates for attributes of 'communication
skill', 'subject knowledge' and 'overall suitability'. We reproduce the
evaluation sheet in the present case as under :
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EVALUATION SHEET
SKILL TEST/PERSONAL INTERACTION
Skill Test/Personal Interaction
Sr. Name of the Regd. Catego Written Skill Communic Subject Overall Total
N Candidate No. ry Test Test ation Skill Knowle Suitabili
o. dge ty
1. Rahul C049 GEN 73 36.5 5 5 7 5 58.5
Annasaheb 401
Shende
19. The Skill Test is shown to have been conducted for only 10
marks. Petitioner has secured 5 out of 10 marks in the Skill Test and has
thus secured 50% qualifying marks. However, on account of lesser
marks given in the attributes of 'communication skill', 'subject
knowledge' and 'overall suitability', petitioner could secure only 22 out
of 50 marks in the interview, for which the minimum qualifying marks
were 25. Otherwise also, in the written test, petitioner secured 73 out of
100 marks which was rounded off to 36.5 (out if 50). The total marks
secured in Written Test and Skill Test/Interaction by the petitioner is
58.5, which is more than 50%. However, since he could not surpass the
barrier of 25 qualifying marks in Skill Test/Interaction, his name is not
recommended for appointment.
20. The evaluation sheet would leave no matter of doubt that
the Selection Committee did subject candidates for interview. Conduct of
interview for Group 'B' post of Assistant Engineer is specifically
prohibited under the Cadre Recruitment Rules, 2021. Even otherwise,
prescription of as high as 50% marks for interview is against the law
repeatedly laid down by the Apex Court. In Ashok (supra), 50 out of 150
marks were allotted to interview which was held as illegal. The Apex
Court held as under :
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". It is not necessary to examine' the matter in detail inasmuch as
50 marks for interview out of 150 are clearly in violation of the
judgment of this Court in Ashok Kumar Yadav & Ors. v. State of
Haryana & Ors., [1988] Sup. S.C.R., 657 and Mohinder Sain Garg v. State
of Punjab & Ors., J .T. 1990 (4) S.C., 704. On a direction given by this
Court on 4th September, 1991 the record of the Selection Committee
was produced before this Court at the time of hearing. From a perusal
of the marks awarded to the selected candidates it is clear that a large
number of candidates have been selected though they had secured
much lesser marks than the appellants in the qualifying examination
but had secured very high marks in the viva voce out of 50 marks kept
for this purpose. Thus it is an admitted position that if the marks for
interview were kept even at 15 per cent of the total marks and merit
list is prepared accordingly then both the appellants were bound to be
selected and a large number of selected candidates would have gone
much lower in the merit list than the appellants. In view of the fact that
the result of the impugned selections was declared in 1987 and the
selected candidates have already joined the posts, we do not consider
it just and proper to quash the selections on the above ground. Further
the selections were made according to the Rules of 1973 and this
practice is being consistently followed for the last 17 years and there is
no allegation of any malafides in the matter of the impugned
selections. However, the Rules are clearly in violation of the dictum
laid down by this Court in the above referred cases and in case the
marks for viva voce would have been kept say at 15 per cent of the
total marks, the appellants before us were bound to be selected on the
basis of marks secured by them in interview, calculated on the basis of
converting the same to 15 per cent of the total marks."
21. In D. Sundara Raju (supra) 50% of the marks were allotted
to interview. The Apex Court held as under :
"29. In Ashok Kumar Yadav (1985) 4 SCC 417, the Court
relied on earlier judgment of this Court in Ajay Hasia and
Others v. Khalid Mujib Sehravardi and Others (1981) 1 SCC
722, wherein the Court took up the view that allocation of
as high a percentage as 33.3% of the total marks for the
viva voice test was beyond reasonable proportion and
rendered the selection of the candidates arbitrary."
"42. The appellants were totally unjustified in allocating
50% marks for the interview particularly when the
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appellants did not even disclose to the respondent that the
interview would also be held to evaluate suitability of the
candidate for the said post. The procedure evolved by the
Selection Committee for evaluating the respondent was
totally arbitrary and contrary to the settled legal position."
22. In the present case, apart from the fact that conduct of
interview is impermissible under the Cadre Recruitment Rules, 2021,
allocation of 50% marks for interview is clearly against the spirit of law
laid down by the Apex Court. Petitioner has been working on the post of
Engineer on contract basis with the respondents for the last about five
long years. It is therefore unfathomable as to how the Selection
Committee has given him lesser marks in the Skill Test/Interaction by
arriving at a conclusion that he is unfit to be appointed on the post. The
evaluation sheet shows that he has been awarded only 5 out of 15 marks
in Communication Skills. Petitioner has leveled allegations in paragraph-
2.14 of the petition about the manner in which the Skill Test/Interaction
was conducted, which are denied by Respondents. We do not wish to
delve deeper into the said allegations in view of the fact that conduct of
interview itself was impermissible under the Rules.
23. The selection committee has awarded 5 out of 10 marks to
petitioner in the Skill Test, which is 50%. All other candidates had
secured less than 50% in the Skill Test. He has already secured
qualifying marks in the Written Test. He has secured highest marks
amongst all the seven candidates in the selection. We are therefore of the
considered view that petitioner has secured the minimum qualifying
marks in the selection. In these circumstances, petitioner ought to have
been selected on the advertised post of Assistant Engineer. Even
otherwise, the conduct of the respondent-institute and the members of
its selection committee in keeping the post vacant by not recommending
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any of the candidates and resorting to re-advertisement does not appeal
to us. Petitioner had secured substantially higher marks in the Written
Test and had qualified in the Skill Test as well. Despite that, the Selection
Committee erroneously conducted interview for the purpose of ousting
petitioner from the selection process. This has resulted in wastage of
time and energy in conducting the selection process.
24. In the result, the Writ Petition succeeds. Respondents shall
treat the petitioner as having qualified in the written and Skill
Test/Interaction for the post of Assistant Engineer in pursuance of the
advertisement issued in September 2021. The respondents shall
accordingly consider his case for appointment on post of Assistant
Engineer. Necessary process be completed within a period of 4 weeks
from today. Writ Petition is accordingly allowed. Rule is made absolute
in the above terms.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
