R.P. Bhasin And Ors. vs D.K. Tyagi And Ors.
2000 Latest Caselaw 1185 Del

JUDGMENT

Arijit Pasayat, C.J.

1. These two appeals under the Letters Patent relate to judgment of learned Single Judge in CWP No. 3865/82. Respondent No. 1 DK Tyagi was the petitioner in the said writ petition. Challenge in the writ petition, was to the selection of certain officials of Oriental Bank of Commerce (hereinafter referred to as the Bank). Twenty six officers, whose selection was set aside, are the appellants in LPA 27/94, whereas the Bank is the appellant in LPA 33/94 along with S.K. Soni, whose role, in the selection of officers for the purpose of promotion, came under scrutiny in the writ petition.

2. The factual position needs to be noted in a nutshell.

Interview was held for the post of Deputy Chief Manager/Asset Regional Manager of the Bank. D.K. Tyagi was one of the candidates. He was not found suitable. He questioned the selection of those who were selected by filing the writ petition essentially on two grounds. Firstly, it was contended that S.K. Soni was DIRECTLY related to two of the candidates whose names figured in the list of successful candidates. Secondly, it was submitted that the said S.K. Soni had hostility against the petitioner DK Tyagi, which resulted in his non-selection. Learned Single Judge found that though S.K. Soni did not participate at the time for interview of his relatives, yet the ENTIRE process of selection was vitiated. Reliance was placed on a decision of the Apex Court in Ashok Kumar Yadav v. State of Haryana . It was, inter alia held that since S.K. Soni had not withdrawn from the entire process and did not ask the authorities to nominate nay other person in his place in the selection committee, the whole selection made in June, 1992 for the post of Deputy General Manager/Asset Regional Manger was to be declared as void ab initio. Though it was pointed out that petitioner D.K. Tyagi had participated in the selection and had got less than requisite marks, it was concluded that presence of S.K. Soni had its impact on the decision of the selection committee and he may have been victim of the bias of the selection committee which resulted in awarding of low marks to him. Promotion given to petitioners 3 to 34 to the post of Dy General Manager/Asset Regional Manager were quashed and the Bank was directed to make fresh selection in accordance with law. It was directed that in case petitioner. D.K. Tyagi was ultimately found suitable for selection and appointment, he will be promoted with effect from 11th June, 1982, the date when respondents 3 to 34 were earlier promoted.

3. Questioning correctness of the decision, two appeals have been filed: In essence, the challenge to the judgment is on the ground that writ petitioners having participated in the process of selection were stopped from raising a dispute about the validity of the process of selection. Further conclusions about the likelihood of bias of the members of selection committee are unfounded and baseless. The stand that there was bias against D.K. Tyagi is clearly unfounded because he has been considered after 1982 selection, which is subject matter of challenge for promotion to the higher grade/scale on as many as eight occasions between August, 1986 and March, 1998. In March, 1998 he was considered and promoted. The plea that because of S.K. Soni's bias he was not favourably considered is travesty of truth because S.K. Soni was not a member of the selection committee after 1986. Some of the successful candidates were initially imp leaded as parties but on the request of the writ petitioners their names were struck off. Though they were not parties in the writ petition after such deletion, the judgment also nullifies their promotion. It is pointed out that the writ petitioners did not plead bias and did not question composition of the selection committee when he appeared at the interview. Even in the appeal filed before the Chairman relating to his non-selection, no bias was pleaded, as regards either his non-selection or selection of two relatives of S.K. Soni; Learned counsel for D.K. Tyagi submitted that a person cannot be non-suited merely because he has not questioned the composition of the selection committee on the ground of bias, if he was not aware of the right to make such a grievance. Strong reliance is placed on the decisions in King v. Essex Justices (Sezer and Ors.) (1927) 2 LB 475. It is further contended that much before the constitution of the selection committee or holding of the interview, he had highlighted bias of S.K. Soni so far as he is concerned.

4. Certain subsequent events have also been highlighted by the appellants. It is stated that after stay of learned Single Judge's order, so far as LPA 27/94 is concerned, of the 26 appellants and respondents 4 to 7 who were selected persons, appellant No. 6 has expired, nine have retired from service in different scales (from Scale-III and IV) ten have become Asstt General Managers in Scale-V, five have become Deputy General Managers in Scale VI, five have become General Managers in Scale VII including one officer officiating as the General Manager. If the learned Single Judge's judgment is given effect, the total number of affected persons would be 57 and, as indicated above, 25 who were selected have not continued as parties in the proceedings. We shall consider relevance of these aspects infra.

5. We shall first deal with the plea relating to maintainability of writ petition by a candidate who has appeared at a selection test/interview without any demur.

5. In University of Cochin v. N.S. Kanjoonjamma, , it was observed that the first respondent in that case had applied for and sought selection but remained unsuccessful. Having participated in the selection, she was estopped from challenging the correctness of the procedure. In Madan Lal v. State of J & K, , it was observed by the Apex Court as follows:

"8. It is now time for us to deal with the contentions canvassed by the learned senior counsel in support of the petition. We shall deal with these contentions seriatim.

Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents 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 dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. 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, that 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 he process of interview was unfair or Selection Committee was not properly constituted. IN the case of Om Parkash Shukla v. Akhilesh Kumar Shukla, , 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."

6. In G. Saraba v. Lucknow University , it was observed inter alia as follows:

"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of the bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the selection committee. He seems to have voluntarily appeared before the Committee and taken a chance for having a favourable recommendation from it. Having done so it is not now open to him to turn round and question the constitution of the committee. This view gains, strength from a decision of the Court in Manak Lal's case (supra) wherein more or less similar circumstances it was held that the failure of the appellant to take the identical pea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting,

"It seems clear that the appellant wanted to take a chance to secure a favorable report from the tribunal which was Constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."

7. In Om Parkash Shukla's case to which reference was made in Madan Lal's case (supra) it was observed in para 23 as follows :

"23. Moreover, this a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has ob served that the setting aside of the results of examinations held in the other Districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination."

8. The view was again reiterated by the Apex Court in Utkal University v. Dr. Nrusingha Charan Sarangi . It was observed as follows.

"9. The last contention of the first respondent which has been accepted by the High Court is that of bias on the part of one of the members of the Selection Committee. The so-called bias, as set out in the original petition, is that one of the experts was a member of an organization which brought out a magazine of which the selected candidate was the Editor while one of the members of the Selection Committee was on the Editorial Board Both the University as well as the selected candidate have pointed out that this fact was known to the first respondent throughout. He did not at any time object to the composition of the selection committee. He objected only after the selection was over and he was not selected. This would amount to waiver to such objection on the part of the first respondent. Reliance is placed on a decision of this Court in G. Sarana (Dr) v. University of Lucknow in which this Court found that despite the fact that the appellant knew all the relevant facts, he had voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it was not open to him to turn round and question the constitution of the committee. A similar view has been taken by this Court in the case of U.D. Lama v. State of Sikkim

9. As noted above by a catena of decisions it has been clearly laid down that when a candidate has appeared at the selection test, no relief is to be granted if he files a writ petition after being declared unsuccessful. Stand that he was unaware of his right to challenge is too brittle to warrant acceptance. The view in King's case (supra) has to be limited to the facts of that case in view of the factual position involved therein. Other every person will come up with a plea about lack of knowledge which on the face of it cannot dilute the effect of his participation nad volte face after non-success. A decision, is a determination arrived at after consideration of facts and in the legal context law related to the facts of a particular case. It is an authority for what is decided and not what consequently or incidentally flows from the conclusion. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute it may become necessary for judges to embark into lengthy discussions, but the discussion is meant to explain and not define. Judges interpret words of statute, their words are not to be interpreted as statutes. Observations of Judges are not to be read as Euclid's theorems; not as provisions of the Statute. (See Sreenivasa General Traders v. State of Andhra Prakash, , Amamath Om Parkash and Ors. v. State of Punjab and Ors., ) there is always peril in treating words of a judgment as they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, (see Harrington v. British Railway Board, (1972) 2 WLR 587. It is needless to repeat the oft-quoted truism of Lord Halsbury that "a case is only an authority for what it actually decides and not for what may seem to follow logically from it" Therefore, decision in Kings' case (supra) is of no assistance to respondent--D.K. Tyagi.

10. Above being the position, learned single Judge was not justified in granting relief to the petitioner who was, as has been frequently described by various Courts, a fence-sitter. He participated without any protest and even in his appeal to the Chairman did not raise any point of bias. It is therefore clear that the petitioner had not considered himself to be the victim of bias at the time of interview and for some length thereafter. Merely because one year before the interview he had made some allegations of bias against S.K. Soni that would not be sufficient to show that Soni continued to have bias against him. Except making bare allegations nothing has been brought on

record to show about the existence of bias by S.K. Soni. Conclusions of learned Single Judge about the likelihood of bias and likelihood of impact of Soni's presence are based on conjectures and surmises. The observations of the learned Single Judge in this regard are as follows :

"Dr. Anand Prakash again tried to show that the petitioner has failed miserably in the interview which is apparent from annexure R-5 which shows the marks obtained by him in the interview. According to annexure R-5, the petitioner has only got 20 marks out of 60 marks and the minimum pass marks required were 30 i.e. 50%. This argument of the learned counsel for the respondent-bank is also without any substance. As already discussed, for invalidating the selection there should not be actual bias, it is sufficient if there is likelihood of any bias. As already discussed the very fact that respondent No. 2 was a member of the Selection Committee must have its own impact on the decision of the selection Committee and in this process the petitioner may have been a victim of bias of the members of the Selection Committee which has resulted in the awarding of low marks to him."

The underlined portions clearly show that the learned Single Judge had entered into the arena of suspicion and presumption without any material to buttress it.

11. Additionally, we find that names of some of the selected candidates who were originally imp leaded as parties, were deleted at the request of the writ petitioner. Their selection has admittedly been set aside without hearing them. Learned Single Judge has noted this position, but has not considered the effect of it. The relevant portion of the judgment reads as follows:

"On an application, being CM 1330/87 filed by the respondents, again, vide order dated 22.4.1987 the petitioner was allowed to file a fresh amended writ petition deleting certain prayer and excluding from the body of the petition any challenge to promotions of respondents 35 to 50. Again, on 10.3.1993, counsel for the petitioner sought permission of the court to delete para (v) of the prayer clause of the second amended petition and further stated tat he would not challenge the said promotions hi the writ petition, which was granted."

Learned counsel for the respondent D.K. Tyagi submitted, that judgment has directly not dealt with promotion of non-imp leaded parties and only promotion of respondents 3 to 34 has, been nullified. He however admitted that judgment has declared entire selection process to be void ab into and it includes that of non-imp leaded parties. Stand that respondent has not grievance to their selection does not improve the situation. If challenge was to the entire process to selection petitioner cannot pick and choose as to against whom he would make the grievance. This is in our view a clear case of violation principles to natural justice corroding foundation of writ petitioners' case.

12. Looked at from above angles, judgment of learned Single Judge under appeal is indefensible and is accordingly set aside. Civil Writ Petition No. 3865/82 deserves dismissal, which we direct. Appeals are allowed to the extent, indicated above.