Punjab-Haryana High Court
Balwinder Singh vs State Of Punjab And Others on 19 March, 2024
Neutral Citation No:=2024:PHHC:039092
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
119 CWP- 1971-2024
Date of Decision: 19.03.2024
Balwinder Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
With
CWP-6369-2023
Abhinash Singla ...Petitioner
Versus
State of Punjab and others ...Respondents
With
CWP-7216-2023
Baljinder Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
With
CWP-6676-2023 (O&M)
Jaspal Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
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And
CWP-25833-2022
Jagdish Bassi ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Ashok Bhardwaj, Advocate for the petitioner(s)
(in CWP-6369-2023 and CWP-7216-2023)
Mr. Sarthak Gupta, Advocate for the petitioner
(in CWP-1971-2024)
Mr. Aminder Singh, Advocate for the petitioner
(in CWP-6676-2023)
Mr. Rakesh Sobti, Advocate for the petitioner
(in CWP-25833-2022)
Mr. Aman Dhir, Deputy Advocate General, Punjab
***
JAGMOHAN BANSAL, J. (Oral)
1. By this common order, the captioned petitions are hereby
disposed of. The facts for the sake of brevity and convenience are borrowed
from CWP No.1971 of 2024.
2. The petitioner through instant petition under Article 226 of the
Constitution of India is seeking setting aside of order dated 16.03.2023
(Annexure P-15) and 26.05.2023 (Annexure P-18) whereby his candidature
for the post of Computer/Digital Forensic Officer has been rejected.
3. The respondent, inviting applications for different posts including
post of Computer/Digital Forensics Officer (for short 'CDFO'), in Bureau of
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Investigation, issued an advertisement No. 5 of 2021 dated 17.08.2021
(Annexure P-1). As per advertisement, there were two stages of selection
process. The first stage comprised of Computer Based Test (for short 'CBT')
and on the basis of marks obtained in the CBT, a list of shortlisted candidates
was to be prepared. The second stage comprised of scrutiny of documents.
The petitioner pursuant to aforesaid advertisement vide
application dated 07.09.2021 (Annexure P-2) applied for the post of CDFO.
He was issued admit card. He appeared in the written test held on 22.09.2021.
The respondent on the basis of marks obtained by different participants issued
a list of shortlisted candidates (Annexure P-10) wherein his name figured at
Sr. No. 1. The respondent issued admit card for Stage-II i.e. scrutiny of
documents. The petitioner on 06.04.2022 appeared before Recruitment Board
and submitted his original documents which were uploaded at the time of
application. The respondent on 02.11.2022 after scrutinizing documents of
candidates, uploaded on its website, a provisional list of selected candidates in
general and economically weaker sections (EWS) category.
4. Few candidates preferred Civil Writ Petitions before this Court
assailing selection list of different advertised posts. This Court vide order
dated 05.12.2022 (Annexure P-14) disposed of a bunch of petitions. The
relevant extracts of the order dated 05.12.2022 read as:
"Pursuant to order dated 24.11.2022, Ms. Gurpreet Deo,
Additional Director General of Police (Community Affairs),
Punjab, who has headed the process of entire recruitment, is
present in Court today. Mr. Gaurav Garg Dhuriwala, Senior
DAG, Punjab, on instructions, would submit that there is no
mistake in compiling the selection lists. In fact the selections
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have been made after taking into consideration the opinion of
the Expert Committee that had been formulated to look into the
experience certificates that had been furnished by the
candidates. It is submitted that some of the candidates have
furnished the experience certificates after having worked on
computer in a karyana shop which would not be an adequate
certificate for working in the Intelligence Wing as compared to
the experience gainees with Infosys like companies. It is also
submitted that apart from the fact that certain candidates have
filed various writ petitions, approximately 150 representations
have been preferred by the candidates seeking a re-look into
the selection list, which representations are being considered
by a Sub Committee which has been constituted for this
purpose. The Sub Committee is being headed by Mr. Rajesh
Jaswal, IGP, who is also a member of the recruitment board
and, therefore, the grievance of the petitioners would also be
looked into and a speaking order will be passed thereon which
would be communicated to the petitioners herein.
I have heard learned counsel for the parties and in view
of the fact that the entire matter is being re-looked into on the
basis of representations that have already been preferred by
the candidates and the Sub Committee constituted is to take up
grievance of each applicant, let the writ petitions filed by the
petitioners herein also be placed before the Sub Committee
which would go into the issue and the grievance of the
petitioners would also be considered and redressed by passing
a speaking order, which order would be communicated to the
candidates including the petitioners herein.
Consequently, these writ petitions are disposed of with
the aforesaid directions."
5. The respondent, in compliance of order dated 05.12.2022 of this
Court, passed order dated 16.03.2023 (Annexure P-15).The respondent
rejected candidature of all the candidates, thus, no one came to be selected. As
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per respondent, none of the candidates is possessing requisite experience
though they are having minimum education qualification.
6. This Court vide order dated 01.05.2023 (Annexure P-17) in CWP
No.25807 of 2022 and other connected matters, directed the respondents to
pass afresh order after considering representations submitted by aggrieved
candidates. The respondents were further directed to grant an opportunity of
personal hearing to the aggrieved candidates. The relevant extracts of the
order dated 01.05.2023 read as:
"Mr. Dhir, on instructions from Mr. Sarabjit, AIG,
Litigation, submits that in order to address the grievance
raised by the petitioners in the bunch of these writ petitions, the
respondent-department has taken a conscious decision to grant
an opportunity of personal hearing to each of the petitioners
and thereafter take objective decision strictly in accordance
with the public notice dated 17.08.2021 and as per law. The
said proposal is acceptable to the counsels representing the
petitioners.
In view of the above, all the petitioners are granted
liberty to represent before Chairperson Central Recruitment
Board on or before 06.05.2023. On getting such
representations, the schedule w.r.t. the hearing would be
published by the Recruitment Board on their website by
08.05.2023 specifying the date and time slot on which the
candidate is required to appear before the Board. Such
exercise would be completed by 12.05.2023. Thereafter
necessary orders adjudicating upon the grievance raised by the
petitioners would be passed on or before 20.05.2023. The
orders will also be published on website and will not be served
personally to the candidates. Counsel representing the
petitioners have consented to this arrangement. The orders
passed be produced on the next date of hearing i.e.
24.05.2023."
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7. Pursuant to order dated 01.05.2023 passed by this Court, the
petitioner and others submitted representation along with experience
certificates. The respondent associated Domain Experts while conducting
personal hearing of the aggrieved candidates. The Domain Experts suggested
to widen meaning of expression 'relevant experience in the IT field'. The
experience as Professor/Assistant Professor in Colleges as well as proprietor
of a concern was included in the zone of consideration. The petitioners
appeared before the respondents for personal hearing. The respondent vide
impugned order dated 26.05.2023 (Annexure P-18), on the basis of opinion of
Domain Experts, rejected candidature of all the applicants including
petitioners. The Domain Experts formed an opinion that 'relevant work
experience' refers to work experience in the field of 'Computer/Digital
Forensics'. The respondent, in view of opinion of domain experts, considered
experience of teaching as relevant for the post of Information Technology
Officer (for short 'ITO') and Information Technology Assistant (for short
'ITA'), however, rejected for the post of CDFO. The findings of Domain
Expert with respect to CDFO read as:
"Detailed comments of domain experts in case of representation filed
by candidates where personal hearing granted by the Board in
compliance of directions of Hon'ble Punjab & Haryana High Court
Computer Digital Forensic Officer (CDFO)
Comments of Domain Expert
1. The candidate appeared for personal hearing
before the Board on 08/05/2023 regarding his
non selection on account of irrelevant
experience.
2. The candidate applied for the post of Computer
Digital Forensics Officer.
3. Earlier the candidate was rejected as per
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experience as lecturer in the Department of
Computer Science and Engineering at Bhai
Gurdas Institute of Engineering and Technology
from 01/08/2007 to 03/09/2021.
4. As per the advertisement, the candidate is
required to have a minimum of 12 years of
"relevant work experience". Since the post for
which the candidate has applied is
"Computer/Digital Forensics Officer", the
"relevant work experience" here refers to work
experience in the field of "Computer/Digital
Forensics".
5. Digital forensics is a branch of forensic science
that focuses on identifying, acquiring,
processing, analyzing, and reporting on data
stored electronically. The main goal of digital
forensics is to extract data from the electronic
evidence (mobile/computer etc), process it into
actionable intelligence and present the findings
for prosecution.
6. The candidate's experience as Lecturer in the
Department of Computer Science and
Engineering is not relevant to the field of
Computer/Digital forensics, where the principal
job of the incumbent would be to extract data
from mobile/computer devices and analyze the
same which is a niche expert field requiring
skills and expertise not acquired or practiced by
the candidate in his experience as lecturer in a
college.
7. Accordingly, the experience of the candidate
remains rejected.
[Emphasis Supplied]
8. Counsel for the petitioners submit that respondent had advertised
different posts which included post of ITO, ITA, Assistant Forensic Officer
and CDFO. The minimum qualification and experience prescribed for ITO,
ITA, and CDFO is same. The qualification and experience required for the
post of Forensic Officer/Assistant Forensic Officer is entirely different. In
case of Forensic Officer/Assistant Forensic Officer, education qualification
and experience are directly related to the post advertised whereas in case of
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CDFO, ITO and ITA, prescribed education qualification is general in nature
i.e. bachelor's degree in Computer Science. In case of Forensic
Officer/Assistant Forensic Officer, the nature of experience is also directly
related with the post whereas in case of CDFO, ITO and ITA, the required
experience is not directly related to post advertised. ITO and ITA are feeder
cadres for CDFO. An Officer after completing minimum prescribed service as
ITO/ITA is eligible for the post of CDFO. The petitioners produced
experience certificates which were accepted for the post of ITO and ITA but
rejected for the post of CDFO. Provisional selection list was issued after
scrutiny of documents i.e. Stage II. There was no reason to reject experience
certificate. The respondent in 2022 has issued standing order wherein duties
and responsibilities as well as desirable skills of different posts have been
prescribed. The petitioners during the course of their degree have studied all
the subjects which are necessary to get desirable skills. They at present are
teaching all the topics which are notified under column 'desirable skills'. The
respondent has rejected all the candidates in violation of doctrine of legitimate
expectation.
9. Mr. Aminder Singh, learned counsel for the petitioner (in CWP-
6676-2023) submits that petitioner is working as Junior Engineer with BSNL
for last 16 years, thus, he has relevant experience.
10. Per contra, Mr. Aman Dhir, Deputy Advocate General, Punjab
submits that in the advertisement, the expression 'relevant experience' was
used though the said expression was not defined or clarified, however, the
selection committee while scrutinizing documents scrutinized experience of
candidates. The State is making appointment in Investigation Bureau, thus,
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best of candidates are required to be selected. The basic job of the bureau is to
investigate the heinous crimes and with the advancement of information
technology, it is inevitable to appoint people having practical experience than
possessing educational qualification without practical experience. The
selection committee with the help of domain experts has re-examined case of
all the candidates and by way of notes enclosed with the speaking order, the
question of relevant experience has been made clear. This is applicable to all
the candidates, thus, there is no discrimination. There is no allegation of mala
fide or favoritism, thus, petitioner cannot claim that there was violation of
Articles 14 and 16 of Constitution of India. The contention of the petitioner
that there is violation of doctrine of legitimate expectation is not sustainable
because State has offered equal opportunity to all the candidates who cleared
written test. The appointment of candidates involved public interest, thus,
State at a later stage could identify scope of 'relevant experience'. The State
has widened meaning of said expression. The State by speaking orders with
clarificatory notes has cleared the mystery which shrouded the entire selection
process. The clarificatory notes are applicable to all the candidates, thus, there
is no violation of principle of legitimate expectation. There is no change in the
terms and conditions of the advertisement. The small deviation, which has
taken place post advertisement, is applicable to all the candidates, thus, no one
can claim discrimination or violation of Article 14 of the Constitution of India
or doctrine of legitimate expectation.
11. The Selection Committee appointed Domain Experts who
disqualified all the candidates for the post of CDFO though they had cleared
written test because an opinion was formed that petitioners are not possessing
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'relevant experience'. The petitioners are possessing requisite educational
qualification but their experience is linked with their educational qualification
but it is not linked with posts advertised. The petitioners are working as
Teacher or Junior Engineer but they are not dealing with retrieving data from
electronic gadgets. No candidate has been selected, thus, none can claim
discrimination. The Stage II of selection process was not meant merely for
scrutiny of documents and Recruitment Board was empowered to check
experience of candidates. The Recruitment Board on scrutiny of Experience
Certificates of all the candidates formed an opinion that their experience is
relevant for the post of ITO/ITA, however, it is not relevant for the post of
CDFO. The post of ITO is indubitably feeding cadre of CDFO, however, for
the direct recruitment of CDFO, experience relevant for ITO/ITA cannot be
considered as relevant experience. The respondent for the first time had
advertised post in question, thus, there could be minor lapse. If the petitioners
are selected, they would not be able to meet the requirement of job profile.
The scope of judicial intervention is very limited in selection matters.
In support of his contention, he relied upon judgments of Apex Court in
Tajvir Singh Sodhi & Others v. The State of Jammu and Kashmir & Others,
2023 AIR (Supreme Court) 2014, Ganapath Singh Gangaram Singh Rajput
v. Gulbarga University Rep. by its Registrar and Others, 2014 (3) SCC 767
and Dinesh Kumar Kashyap and others v. South East Central Railway and
others, 2019 (12) SCC 798. The Apex Court has held that it is not within
domain of the Courts, exercising power of judicial review, to enter into the
merits of a selection process, a task which is the prerogative of and is within
the expert domain of a Selection Committee, subject of course to a caveat that
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if there are proven allegations of malfeasance or violation of statutory rules,
only in such cases of inherent arbitrariness, the Courts can intervene. It is not
appropriate for the Courts to substitute their judgment for that of a selection
committee because process of selection involves a high degree of expertise
and discretion.
12. I have heard the arguments of learned counsels for the parties and
perused the record with their able assistance.
13. The conceded position emerging from the record is that the
respondent advertised various posts for its investigation wing i.e. Bureau of
Investigation. The selection process comprised of two stages i.e. (i) written
test and (ii) documents scrutiny. In the advertisement, the minimum
qualification and experience was prescribed. The petitioner and others applied
for more than one posts. The respondent issued admit cards and petitioners
appeared in the written test. The respondent declared result of the written test
wherein name of petitioners figured among few top scorers. The respondent
called petitioners for scrutiny of documents wherein no mis-match, in the
documents uploaded vis-à-vis original produced, was discovered, accordingly,
provisional list of selected candidates was uploaded on website. In the wake
of orders of this Court, the respondent re-considered experience certificates of
all the candidates. The respondent formed an expert committee which rejected
candidature of all the short-listed candidates forming an opinion that their
experience is irrelevant. The petitioners have been found eligible for the post
of ITA & ITO. The qualification and experience prescribed for ITA/ITO and
CDFO is same. The expert committee has widened the scope of expression
'relevant experience.'
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14. From the perusal of record, arguments of both sides and
conceded position following questions emanate for adjudication by this court:
i) Whether decision of selection committee falls within scope
and ambit of judicial review?
ii) Whether the decision of selection committee to reject all the
candidates is just, fair and right?
Q. No. 1 Whether decision of selection committee falls within scope and
ambit of judicial review?
15. The petitioners have applied for the public post and employer
being State while conducting test and selecting candidates was supposed to
comply with mandate of Articles 14, 16 and 309 of the Constitution of India.
State is a model employer. The respondent being State was shackled by rule
of law.
16. A Constitution Bench in State of Karnataka v. Umadevi, (2006)
4 SCC 1 while adverting with issues arising out of appointment of contractual
employees and their regularisation has observed that in public employment,
while making appointments, an employer is bound by mandate of constitution
and statutory provisions. The state is bound to comply with rule of law
contemplated by article 14, 16 and 309 of the Constitution of India. The
relevant extracts of the judgment read as:
"2. Public employment in a sovereign socialist secular
democratic republic, has to be as set down by the Constitution
and the laws made thereunder. Our constitutional scheme
envisages employment by the Government and its
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instrumentalities on the basis of a procedure established in that
behalf. Equality of opportunity is the hallmark, and the
Constitution has provided also for affirmative action to ensure
that unequals are not treated as equals. Thus, any public
employment has to be in terms of the constitutional scheme.
XXXX XXXX XXXX
6. The power of a State as an employer is more limited
than that of a private employer inasmuch as it is subjected to
constitutional limitations and cannot be exercised arbitrarily
(see Basu's Shorter Constitution of India). Article 309 of the
Constitution gives the Government the power to frame rules for
the purpose of laying down the conditions of service and
recruitment of persons to be appointed to public services and
posts in connection with the affairs of the Union or any of the
States. That article contemplates the drawing up of a procedure
and rules to regulate the recruitment and regulate the service
conditions of appointees appointed to public posts. It is well
acknowledged that because of this, the entire process of
recruitment for services is controlled by detailed procedures
which specify the necessary qualifications, the mode of
appointment, etc. If rules have been made under Article 309 of
the Constitution, then the Government can make appointments
only in accordance with the rules. The State is meant to be a
model employer. The Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959 was enacted to ensure
equal opportunity for employment seekers. Though this Act may
not oblige an employer to employ only those persons who have
been sponsored by employment exchanges, it places an
obligation on the employer to notify the vacancies that may
arise in the various departments and for filling up of those
vacancies, based on a procedure. Normally, statutory rules are
framed under the authority of law governing employment. It is
recognised that no government order, notification or circular
can be substituted for the statutory rules framed under the
authority of law. This is because, following any other course
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could be disastrous inasmuch as it will deprive the security of
tenure and the right of equality conferred on civil servants
under the constitutional scheme. It may even amount to
negating the accepted service jurisprudence. Therefore, when
statutory rules are framed under Article 309 of the Constitution
which are exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed.
[Emphasis Supplied]
17. It is settled proposition of law that it is absolute discretion of
employer to specify terms and conditions of selection process. It is employer
who knows better than anyone else about the nature of work to be done,
requisite qualification as well experience to perform for the said job. The
Courts are not supposed to specify eligibility criteria/qualification or
substitute opinion of authorities by its opinion. Court may interfere if it finds
that there is manifest arbitrariness or violation of fundamental rights
guaranteed by constitution or statutory provisions governing the appointment.
Thus, the scope of interference by Courts including Constitutional Courts is
very limited.
18. It is axiomatic that Courts cannot ask State to create/abolish post
or formulate/structure/re-structure a cadre. It is within domain of the executive
which as per its financial resources, work load, need of manpower,
availability of sources etc. decides. Similarly, courts cannot substitute opinion
of selection committee or ask the State to make selection in a particular
manner or of particular candidates or keep the posts vacant or fill the posts,
however, decision of executive can be tested on the touchstone of
fundamental rights as well as statutory provisions. Constitutional courts
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having been assigned role of Sentinel on the Qui Vive, thus, cannot turn a
blind eye or deflect from their responsibility.
19. A three Judge Bench of Supreme Court in Official Liquidator v.
Dayanand and Others, (2008) 10 SCC 1 while adverting to question of
regularization of temporary employees has held that courts cannot ask State to
create posts to absorb employees. The findings of the court read as:
"59. The creation and abolition of posts, formation and
structuring/restructuring of cadres, prescribing the source and
mode of recruitment and qualifications and criteria of
selection, etc. are matters which fall within the exclusive
domain of the employer. Although the decision of the employer
to create or abolish posts or cadres or to prescribe the source
or mode of recruitment and laying down the qualification, etc.
is not immune from judicial review, the Court will always be
extremely cautious and circumspect in tinkering with the
exercise of discretion by the employer. The Court cannot sit in
appeal over the judgment of the employer and ordain that a
particular post or number of posts be created or filled by a
particular mode of recruitment. The power of judicial review
can be exercised in such matters only if it is shown that the
action of the employer is contrary to any constitutional or
statutory provisions or is patently arbitrary or vitiated by mala
fides.
20. A Three Judge Bench of Supreme Court in Dinesh Kumar
Kashyap and others v. South East Central Railway and others, 2019 (12)
SCC 798 adverted to scope of judicial review in selection matters. In this case,
court had occasion to decide right of candidates who were in the wait list. The
Respondent-Railway called 20% extra candidates for interview who were in
the wait list. It was held that Court cannot substitute decision of the Railways
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and direct to appoint candidates in the wait list. Mere inclusion of name of a
candidate in the selection list does not give him right of appointment. The
relevant extracts of the judgment read as:
"34. Still further, in exercise of power of judicial review, this
Court is not to substitute the decision of the Railways and to
direct candidates in the waiting list to be appointed. In a three-
Judge Bench judgment reported as Kali Dass Batish
case [Union of India v. Kali Dass Batish, (2006) 1 SCC 779 :
2006 SCC (L&S) 225] , it has been held that mere inclusion of
a candidate's name in the selection list gave him no right, and
if there was no right, there could be no occasion to maintain a
writ petition for enforcement of a non-existing right. It has been
also held that however wide the power of judicial review under
Article 226 or 32 of the Constitution, there is self-recognised
limit to exercise such power. The Court held as under: (SCC
pp. 788-90, paras 15, 17-19)
"15. In this matter, the approach adopted by the
Jharkhand High Court commends itself to us. The
Jharkhand High Court [Ram Kishore Prasad v. Union of
India, 2003 SCC OnLineJhar492 : 2004 AIR Jhar R 2552]
approached the matter on the principle that judicial review
is not available in such a matter. The Jharkhand High
Court also rightly pointed out that mere inclusion of a
candidate's name in the selection list gave him no right, and
if there was no right, there could be no occasion to
maintain a writ petition for enforcement of a non-existing
right.
***
17. In K. Ashok Reddy v. Union of India [K. Ashok
Reddy v. Union of India, (1994) 2 SCC 303] , this Court
indicated that however wide the power of judicial review
under Article 226 or 32 there is a recognised limit, albeit
self-recognised, to the exercise of such power. This Court
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reiterated a passage from Craig's Administrative Law (2nd
Edn., p. 291), vide SCC p. 315, para 21, as under:
'The traditional position was that the courts would
control the existence and extent of prerogative power,
but not the manner of exercise thereof. ... The
traditional position has however now been modified by
the decision in GCHQ case [Council of Civil Service
Unions v. Minister for the Civil Service, 1985 AC 374 :
(1984) 3 WLR 1174 (HL)] . Their Lordships emphasised
that the reviewability of discretionary power should be
dependent upon the subject-matter thereof, and not
whether its source was statute or the prerogative.
Certain exercises of prerogative power would, because
of their subject-matter, be less justiciable, with Lord
Roskill compiling the broadest list of such forbidden
territory....'
The observations of Lord Roskill, referred to above, are
from Council of Civil Service Unions v. Minister for the
Civil Service [Council of Civil Service Unions v. Minister
for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174
(HL)] (GCHQ case) as under: (All ER p. 956d-e)
'But I do not think that that right of challenge can be
unqualified. It must, I think, depend on the subject-matter of
the prerogative power which is exercised. Many examples
were given during the argument of prerogative powers
which as at present advised I do not think could properly be
made the subject of judicial review. Prerogative powers
such as those relating to the making of treaties, the defence
of the realm, the prerogative of mercy, the grant of honours,
the dissolution of Parliament and the appointment of
ministers as well as others are not, I think, susceptible to
judicial review because their nature and subject-matter is
such as not to be amenable to the judicial process.'
18. Finally, this Court emphasised judicial restraint by
citing with approval a passage in de Smith's Judicial
Review of Administrative Action (vide K. Ashok Reddy
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case [K. Ashok Reddy v. Union of India, (1994) 2 SCC 303]
SCC p. 316, para 23) as under:
'Judicial self-restraint was still more marked in
cases where attempts were made to impugn the exercise
of discretionary powers by alleging abuse of the
discretion itself rather than alleging non-existence of the
state of affairs on which the validity of its exercise was
predicated. Quite properly, the courts were slow to read
implied limitations into grants of wide discretionary
powers which might have to be exercised on the basis of
broad considerations of national policy.'
Based on this reasoning, it was acknowledged that the
transfer of a Judge of the High Court based on the
recommendation of the Chief Justice of India would be
immune from judicial review as there is 'an inbuilt check
against arbitrariness and bias indicating absence of need
for judicial review on those grounds. This is how the area of
justiciability is reduced.... [Ibid., para 24]'
19. We, respectfully, reiterate these observations, and
expect them to be kept in mind by all courts in this country
invested with the power of judicial review."
21. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, a
Constitution Bench elaborated and expounded the relationship between
different articles guaranteeing fundamental rights and enunciated that every
action of the State is violative of article 14 which is arbitrary. Equality is
antithetic to arbitrariness. Equality and arbitrariness are sworn enemies. One
belongs to the rule of law in a republic, while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and constitutional law and is
therefore violative of Article 14. Justice Bhagwati speaking for the bench has
held:
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"7. Now, the question immediately arises as to what is the
requirement of Article 14: what is the content and reach of the
great equalising principle enunciated in this article? There can
be no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected to
a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all embracing scope and
meaning, for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and
dimensions and it cannot beimprisoned within traditional and
doctrinaire limits. We must reiterate here what was pointed out
by the majority in E.P. Royappa v. State of Tamil Nadu (1974)
4 SCC 3 namely, that "from a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law
in a republic, while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14".
Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It
must be "right and just and fair" and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied."
[Emphasis Supplied]
22. High Court is creature of Constitution and it, in terms of Article
226 of Constitution of India, has got extra ordinary writ jurisdiction. There are
various articles wherein it has been either provided that decision of the
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authority or institution shall be final or jurisdiction of courts is barred.
Supreme Court while dealing with such articles has enunciated that judicial
review is part of basic structure of our constitution and jurisdiction of High
Court under Article 226 and Supreme Court under article 32 cannot be
curtailed.
While considering the scope of judicial review during the
operation of an order passed by the President under Article 359(1) suspending
the fundamental right guaranteed under Article 21 of the Constitution, a
Constitution Bench in Makhan Singh v. State of Punjab (1964) 4 SCR 797
has held that the said order did not preclude the High Court entertaining a
petition under Article 226 of the Constitution where a detenu had been
detained in violation of the mandatory provisions of the detention law or
where the detention has been ordered mala fide.
As per Article 217(3), decision of President on the question of
age of a judge of High Court is final. While dealing with the decision of the
President under Article 217 (3), Supreme Court in Union of India Vs Jyoti
Prakash Mitter (1971) 1 SCC 396 held that the President acting under Article
217(3) performs a judicial function of grave importance under the scheme of
our Constitution. Notwithstanding the declared finality of the order of the
President, the Court has jurisdiction in appropriate cases to set aside the order,
if it appears that it was passed on collateral considerations or the Rules of
natural justice were not observed or that the President's judgment was
coloured by the advice or representation made by the executive or it was
founded on no evidence.
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As per Article 311(3) of the Constitution, the decision of an
authority regarding question of conducting inquiry is final. A Constitution
Bench while dealing with Article 311(3) in Union of India Vs. Tulsiram
Patel (1985) 3 SCC 398 held that 'finality' given by clause (3) of Article 311
is not binding upon the Court. The Court will examine the charge of mala
fides, if any, made in the writ petition. The Court will consider the situation
which according to the disciplinary authority made it to come to the
conclusion that it was not reasonably practicable to hold the inquiry.
As per Tenth Schedule of Constitution, the decision of Speaker
regarding disqualification of member of Parliament or Legislative Assembly
is final. A Constitution Bench in Kihoto Hollohan Vs. Zachillhu & others
1992 Supp (2) SCC 651 has held that the concept of statutory finality
embodied in Paragraph 6(1) does not detract from or abrogate judicial review
under Articles 136, 226 and 227 of the Constitution in so far as infirmities
based on violations of constitutional mandates, mala fides, non-compliance
with Rules of Natural Justice and perversity are concerned. The
Speaker/Chairmen while exercising powers and discharging functions under
the Tenth Schedule act as Tribunal adjudicating rights and obligations under
the Tenth Schedule and their decisions in that capacity are amenable to
judicial review.
23. From the above-cited judgments, it is evident that no executive or
quasi-judicial decision is absolutely immune from judicial review. There are
self-imposed limitations/restrictions. High court in exercise of its power of
judicial review conferred by Article 226 of Constitution can certainly examine
legality of a decision of selection committee. It cannot turn a blind eye. In the
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peculiar facts and circumstances of the present case, this court finds it
appropriate to examine validity of the decision of selection committee.
Q. No. 2 Whether the decision of selection committee to reject all the
candidates is just, fair and right?
24. The petitioners have laid challenge to speaking order primarily
on the ground that as per advertisement, Stage-II is meant for scrutiny of
documents and respondent was supposed to examine qualification and
experience prior to written test and post declaration of result, the respondent
could match original documents with already uploaded documents. The final
selection has to be made on the basis of written test whereas respondents
acting contrary to advertisement have drawn result at its whims and caprices.
The respondent in an arbitrary manner has trenched deficiency in the
experience of candidates who had cleared written test and produced original
documents at Stage-II. The respondents in the advertisement had required to
have 12 years 'relevant experience'. The respondent could question validity of
experience prior to written test but after declaration of result, experience could
not be questioned. The nature of experience required for the post of ITA/ITO
and CDFO is same and post of ITO is feeder cadre of CDFO. Nonetheless, the
respondent has accepted same experience for the post of ITO/ITA and rejected
for CDFO. The case of the petitioners is squarely covered by recent
judgement of Supreme Court in Sivanandan C.T. and Others v. High Court
of Kerala and Others, 2023 SCC OnLine SC 994.
25. For the adjudication of present petitions, it would be inevitable to
look at minimum qualification and experience prescribed in the
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advertisement. Clause 5.3 of the advertisement which deals with qualifications
and experience is reproduced as below:
"5.3 Minimum Educational Qualifications & Experience
Name of the Educational Qualification Experience
Post
Legal Officer Bachelor's Degree in Law Minimum experience
with minimum of fifty of 07 years as a
percent marks or equivalent Legal practitioner or
from a Central or State practicing lawyer in
Government recognized Supreme Court of
University or Institution. India or High Courts
or District Courts.
Assistant Bachelor's degree in Law Minimum experience
Legal Officer with minimum of fifty of 02 years as Legal
percent marks or equivalent Practitioner or
from a Central or State practicing lawyer in
Government recognized Supreme Court of
University or Institution. India or High Courts
or District Courts.
Forensics Bachelor's degree in Minimum 07 years of
Officer Forensic Science or relevant work
equivalent from a Central experience in any
or State Government Government or
recognized University or Quasi-Government
Institution. Forensics
Organization or
Central or State
Government
Accredited Forensic
Science
Laboratory(ies) or
Institute(s) or
Central or State
Government
Chemical Examiner
Laboratory(ies) or
any Public Sector
Laboratory(ies).
Assistant Bachelor's degree in Minimum 02 years of
Forensics Forensic Science or work experience in
Officer equivalent from a Central any Government or
or State Government Quasi-Government
recognized University or Forensics
Institution. Organization or
Central or State
Government
Accredited Forensic
Science
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Laboratory(ies) or
Institute(s) or
Central or State
Government
Chemical Examiner
Laboratory(ies) or
any Public Sector
Laboratory(ies).
Computer/ Bachelor's degree in Minimum 12 years of
Digital Computer Science, IT or relevant work
Forensics Electronics and experience in Central
Officer: Communication with Government or State
emphasis on Computer Government or
software and programming Public Sector
from a Central or State Undertaking or any
Government recognized or e-Governance
an AICTE approved Project or in Private
University or Institution Sector.
Information Bachelor's degree in Minimum 07 years of
Technology Computer Science, IT or relevant work
Officer: Electronics and experience in Central
Communication with Government or State
emphasis on Computer Government or
software and programming Public Sector
from a Central or State Undertaking or any
Government recognized or e-Governance
an AICTE approved Project or in Private
University or Institution. Sector.
Information Bachelor's degree in Minimum 02 years of
Technology Computer Science, IT or relevant work
Assistant Electronics and experience in Central
(Software) Communication with Government or State
emphasis on Computer Government or
software and programming Public Sector
from a Central or State Undertaking or any
Government recognized or e-Governance
an AICTE approved Project or in Private
University or Institution. Sector.
Financial Bachelor's degree in Minimum 07 years of
Officer Commerce or Finance from experience in
a Central or State accounting or
Government recognized banking or financial
University or Institution. fraud investigations.
Assistant Bachelor's degree in Minimum 02 years of
Financial Commerce or Finance from experience in
Officer a Central or State accounting or
Government recognized banking or financial
University or Institution. fraud investigations.
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26. The respondent in the advertisement further prescribed procedure
of the appointment. The relevant extracts of the advertisement read as:
"1.2 The recruitment for filling up the vacancies in the
cadre of Civilian Support Staff shall be carried out through a
Common Application Form (CAF) and Computer Based Test
(CBT) followed by document scrutiny. The selection of a
candidate shall be on the basis of their respective merit
determined strictly on the basis of marks obtained in the
Computer Based Test and normalization (if CBT is conducted
in multiple shifts). A candidate may apply for one or more posts
advertised. In case, a candidate applies for only one post in the
Common Application Form, she/he shall be considered only for
that post and not for the other posts of Civilian Support Staff.
Candidate will be required to specify his/her order of
preference if he/she applies for more than one post. In case of
selection in more than one post, the candidate shall be
allocated to only the post for which he/she has indicated
his/her preference.
XXXX XXXX XXXX
6. SELECTION PROCESS :
The selection shall be a 2 (two) stage process consisting of
following Tests:
Stage I: Computer Based Test (CBT) Objective Type
having multiple choice questions.
Stage II: Document Scrutiny
XXXX XXXX XXXX
8. STAGE - II: DOCUMENT SCRUTINY:
Sufficient number of candidates would be shortlisted and called
for Stage2, as per vacancy position, on the basis of merit
determined by the marks obtained in the CBT Based Written
Test following normalization and after factoring in reservation
for various categories. Stage 2 of the selection process
consisting of Document Scrutiny shall be conducted at
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designated place(s), date(s) and time as decided by the
Recruitment Board.
8.1 Schedule for Stage - II:
The schedule for Document Scrutiny shall be uploaded
on the Recruitment Portal. The candidate is required to
bring a hard copy (print out) of the same, along with an
identity proof, for entry to the venue of the Stage 2.
8.2 Document Scrutiny:
Candidates called for Stage 2 of the selection process
would be required to report for document scrutiny on
the designated date(s) and time at the place mentioned
on the Recruitment Portal. Candidates shall be required
to bring the following certificates in original along with
one self-attested copy of each document:
(i) Matriculation certificate for proof of age.
(ii) Graduation degree&/or relevant degrees or its
equivalent from a recognized Education Board/
University.
(iii) Proof of having passed Punjabi at Matriculation
level or equivalent.
(iv) Certificate, issued by the Competent Authority, to
support claim for reserved category, including
Sports and persons with Disability, if any.
(v) No Objection Certificate (NOC) from the Head of
Department/Office concerned, in case of
candidates, who are serving government
employees.
(vi) Certificate pertaining to professional experience
as specified.
Note 1: The candidates, whose documents uploaded with
the Application Form match with the original presented
on the spot during document scrutiny, shall be
considered eligible for final selection.
[Emphasis Supplied]
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27. From the perusal of the above clauses of the advertisement, it
comes out that advertisement notified minimum 12 years 'relevant work
experience', however, did not clarify what would be considered as 'relevant
work experience'. The advertisement further prescribed that selection would
be made on the basis of written test and second stage is meant for scrutiny of
documents. The result of written test was declared and list of short-listed
candidates was prepared. Requisite number of candidates were called for
document scrutiny. As per aforesaid clauses, the Stage-II comprised of
scrutiny of documents which was confined to matching documents uploaded
at the time of filing application with original documents. The respondent was
not supposed to make either comparative study of the selected candidates nor
lay down nature of experience. The respondent could verify authenticity of
experience certificate furnished by candidates. There could be a candidate
who possessed 12 years' experience in an organization but totally unrelated to
IT field e.g. as data entry operator or marketing/finance manager. This is not
case of the petitioners. Here, the respondent initially accepted experience of
petitioners and issued provisional list of selected candidates. The requisite
minimum qualification was 'Bachelor's degree in Computer Science, IT or
Electronics and Communication with emphasis on Computer software and
programming from a Central or State Government recognized or an AICTE
approved University or Institution'. The expression 'relevant experience' in
the absence of clarity was required to be read in conjunction with
qualification. A candidate who had secured Bachelor degree in Computer
Science or Electronics & Communication is supposed to have experience in
the same field. Thus, in the absence anything contrary provided in the
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advertisement, any candidate having experience in the field in which he
possesses degree ought to be considered as 'relevant experience'. The
respondent in the advertisement did not define nature of experience which led
to confusion and vicious litigation. The candidates possessing requisite degree
are rejected on the ground of experience. The respondent for the first time
while passing speaking order dated 16.03.2023 followed by order dated
26.05.2023 notified scope of expression 'relevant work experience'.
28. There is no cavil that after commencement of recruitment process
which starts from the advertisement, rules of game cannot be changed.
Recruitment agency is bound to proceed in accordance with terms and
conditions of the advertisement and rules governing the recruitment. This rule
is based upon principle of estoppel and right of legitimate expectation.
Contention of the State that no candidate has been selected, thus, there is no
discrimination and violation of article 14 of the Constitution is mis-conceived
and deserves to be rejected. The respondent without any reason and after
declaring provisional result evolved a different meaning of expression
'relevant work experience'. The decision of respondent was contrary to terms
and conditions of the advertisement as well doctrine of legitimate expectation,
thus, it was arbitrary, unreasonable and violative of Article 14 & 21 of the
Constitution of India.
29. A five Judge Constitution Bench in Sivanandan C.T. (Supra)
adverted to validity of appointment of District and Sessions Judges. High
Court of Kerala in 2015 invited applications for appointment as District and
Sessions Judges in the Kerala State Higher Judicial Services by direct
recruitment from the Bar. The notification stipulated that the selection would
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be on the basis of a competitive examination consisting of a written
examination and a viva-voce. The total marks assigned for the written
examination were 300 comprising of two papers, each carrying 150 marks.
Paragraph 5 of the notification stipulated that "the merit list of successful
candidates will be prepared on the basis of the total marks obtained in the
written examination and viva voce." After the viva-voce was conducted, the
Administrative Committee of the High Court passed a resolution by which it
decided to apply the same minimum cut-off marks which were prescribed for
the written examination as a qualifying criteria in the viva-voce. In coming to
this conclusion, the Administrative Committee was of the view that since
appointments were being made to the Higher Judicial Service, it was
necessary to select candidates with a requisite personality and knowledge
which could be ensured by prescribing a cut-off for the viva-voce in terms
similar to the cut-off which was prescribed for the written examination. The
Full Court of the High Court of Kerala approved the resolution of the
Administrative Committee. The final merit list of the successful candidates
was also published on the same day. The decision of the Full Court to apply
minimum cut-off marks for the viva voce and the resultant promulgation of
the list of successful candidates came to be challenged before Apex Court
under Article 32 of the Constitution. On account of application of cut off
marks in the viva-voce, many candidates were ousted though they secured
higher marks than many of the candidates who were selected on the
consideration of the aggregate of marks in the written examination and the
viva-voce. Hon'ble Court adverted with principle of legitimate expectation
and validity of amendment of rule carried out after written examination. The
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Court held the amendment ultra-virus though selection was not set aside on
the ground of efflux of time. The relevant extracts of the judgment read as:
"56. Under the unamended 1961 Rules, the High Court was
expected to draw up the merit list of selected candidates based
on the aggregate marks secured by the candidates in the
written examination and the viva voce, without any requirement
of a minimum cut-off for the viva voce. Thus, the decision of the
Administrative Committee to depart from the expected course
of preparing the merit list of the selected candidates is contrary
to the unamended 1961 Rules. It is also important to highlight
that the requirement of a minimum cutoff for the viva voce was
introduced after the viva voce was conducted. It is manifest that
the petitioners had no notice that such a requirement would be
introduced for the viva voce examination. We are of the opinion
that the decision of High Court is unfair to the petitioners and
amounts to an arbitrary exercise of power.
57. The High Court's decision also fails to satisfy the test of
consistency and predictability as it contravenes the established
practice. The High Court did not impose the requirement of a
minimum cut-off for the viva voce for the selections to the post
of District and Sessions Judges for 2013 and 2014. Although
the High Court's justification, when analyzed on its own terms,
is compelling, it is not grounded in legality. The High Court's
decision to apply a minimum cut-off for the viva voce frustrated
the substantive legitimate expectation of the petitioners. Since
the decision of the High Court is legally untenable and fails on
the touchstone of fairness, consistency, and predictability, we
hold that such a course of action is arbitrary and violative of
Article iii. What should this Court do?
58. The question which now arises before the Court is in
regard to the relief which can be granted to the petitioners. The
final list of successful candidates was issued on 6 March 2017.
The candidates who have been selected have been working as
District and Sessions Judges for about six years. In the
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meantime, all the petitioners who are before the Court have not
functioned in judicial office. At this lapse of time, it may be
difficult to direct either the unseating of the candidates who
have performed their duties. Unseating them at this stage
would be contrary to public interest since they have gained
experience as judicial officers in the service of the State of
Kerala. While the grievance of the petitioners is that if the
aggregate of marks in the written examination and viva-voce
were taken into account, they would rank higher than three
candidates who are respondents to these proceedings, equally,
we cannot lose sight of the fact that all the selected candidates
are otherwise qualified for judicial office and have been
working over a length of time. Unseating them would, besides
being harsh, result in a situation where the higher judiciary
would lose the services of duly qualified candidates who have
gained experience over the last six years in the post of District
Judge.
59. For the above reasons, we have come to the conclusion
that it would not be possible to direct the induction of the
petitioners into the Higher Judicial Service at the present
stage. Many of the petitioners would have since joined the Bar
and would be in active practice. It needs to be clarified that
their having failed to gain selection to the Higher Judicial
Service in the process which was initiated on 30 September
2015, is not a reflection either on their merits or ability and
shall not come in the way of their being considered for any
other office, judicial or otherwise, in the future.
E. Conclusions
60. The following are our conclusions in view of the
above discussions:
(i) The principles of good administration require that
the decisions of public authorities must withstand the
test of consistency, transparency, and predictability to
avoid being termed as arbitrary and violative of Article
14;
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(ii) An individual who claims a benefit or entitlement
based on the doctrine of substantive legitimate
expectation has to establish the following : (i) the
legitimacy of the expectation; and that (ii) the denial of
the legitimate expectation led to a violation of Article
14;
(iii) A public authority must objectively demonstrate by
placing relevant material before the court that its
decision was in the public interest to frustrate a claim of
legitimate expectation;
(iv) The decision of the High Court of Kerala to apply a
minimum cut-off to the viva voce examination is
contrary to Rule 2(c)(iii) of the 1961 Rules.
(v) The High Court's decision to apply the minimum cut-
off marks for the viva voce frustrates the substantive
legitimate expectation of the petitioners. The decision is
arbitrary and violative of Article 14.
(vi) In terms of relief, we hold that it would be contrary
to the public interest to direct the induction of the
petitioners into the Higher Judicial Service after the
lapse of more than six years. Candidates who have been
selected nearly six years ago cannot be unseated. They
were all qualified and have been serving the district
judiciary of the state. Unseating them at this stage
would be contrary to public interest. To induct the
petitioners would be to bring in new candidates in
preference to those who are holding judicial office for a
length of time. To deprive the state and its citizens of the
benefit of these experienced judicial officers at a senior
position would not be in public interest."
30. In the case in hand, the prime grouse of the petitioners is that the
respondents after declaration of result of the written test followed by
acceptance of their experience as 'relevant experience', as per its whims and
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caprices, have notified scope of experience. The respondent as per its
discretion has accepted same experience for two posts i.e. ITO/ITA and
rejected for third i.e. CDFO, though, experience prescribed for all three posts,
in the advertisement was verbatim replica. At the cost of repetition but for the
sake clarity 'experience' prescribed for the post of ITO/ITA and CDFO is
reproduced as below:
Name of the Educational Qualification Experience
Post
Computer/ Bachelor's degree in Minimum 12 years of
Digital Computer Science, IT or relevant work
Forensics Electronics and experience in Central
Officer: Communication with Government or State
emphasis on Computer Government or
software and programming Public Sector
from a Central or State Undertaking or any
Government recognized or e-Governance
an AICTE approved Project or in Private
University or Institution Sector.
Information Bachelor's degree in Minimum 07 years of
Technology Computer Science, IT or relevant work
Officer: Electronics and experience in Central
Communication with Government or State
emphasis on Computer Government or
software and programming Public Sector
from a Central or State Undertaking or any
Government recognized or e-Governance
an AICTE approved Project or in Private
University or Institution. Sector.
Information Bachelor's degree in Minimum 02 years of
Technology Computer Science, IT or relevant work
Assistant Electronics and experience in Central
(Software) Communication with Government or State
emphasis on Computer Government or
software and programming Public Sector
from a Central or State Undertaking or any
Government recognized or e-Governance
an AICTE approved Project or in Private
University or Institution. Sector.
31. In view of settled law, the scope of experience could not be
notified post advertisement whereas respondents have notified post
declaration of provisional result. The respondents did not prescribe/clarify
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scope of experience in the advertisement and applications were invited for the
post of IT experts. The selected candidates have to join Bureau of
Investigation which is a premier investigation agency of the State. It is an
electronic era. There is ocean of change in the nature of offences and mode of
investigation. The investigating agencies are bound to adopt scientific
methods to crack the offences. Traditional methods are no more significant to
solve the complicated cases. Every agency is known by its manpower. If the
officers/employees manning an investigating agency are not well equipped,
agency is bound to be fraught with defame and stories of unsuccess. It is
constitutional duty of the State to protect its citizen from crime and criminals.
State counsel is right in saying that they need best of IT persons to make the
agency professional which may handle hard criminal cases.
32. The advertisement did not specify scope of 'relevant work
experience' and Stage-II comprised of document scrutiny. The respondent as
per advertisement was duty bound to select candidates on the basis of written
test. The respondent could reject candidature of an applicant prior to written
test and Stage-II comprised of mere matching of uploaded documents with
original. As per law enunciated by Apex Court, the recruitment agency cannot
change rules of the game i.e. terms and conditions of the selection process. As
per advertisement, a candidate was supposed to possess minimum
qualification and minimum experience. The final selection has to be made on
the basis of written test and Stage-II comprised of scrutiny of documents. The
right of legitimate expectation accrued to those candidates who appeared in
the written test and cracked the same. The recruitment agency was bound to
follow rules of the advertisement and could not deviate from prescribed
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procedure. Prescription of scope of experience after publication of provisional
list of selected candidates was in gross violation of general principles of
administrative law as well as doctrine of legitimate expectation. The state is
bound to maintain uniformity, consistency and transparency. Clandestine
prescription of scope of experience post declaration of result amounts to
violation of recruitment rules as well as principle of legitimate expectation.
The candidates are going to be appointed for Bureau of Investigation and they
have to perform job of IT experts. A candidate having minimum academic
qualification was supposed to carry experience of 12 years. The State was
duty bound to verify experience otherwise prescription of minimum
experience would become otiose, thus, State cannot be asked to make
appointments mechanically. The State in the public interest and for the public
cause may act contrary to legitimate expectation of candidates. The State has
failed to establish that all the candidates have been rejected in the public
interest. By accepting same experience for the post of ITO which is feeder
cadre and when experience prescribed for both the posts is identically worded,
it cannot be countenanced that State has cancelled entire slot of candidates in
the public interest. The sole defence of the State is that expert committee did
not find experience of candidates suitable. The committee at the last leg of the
selection process could not come out with a plea that experience of candidates
is not relevant especially when same experience at the time of provisional
result as well final for the post of ITO/ITA was accepted.
33. The petitioners during the course of arguments successfully
demonstrated that in the advertisement where experience is linked with post, it
was so notified e.g. in the case of post of Legal Officer, 7 years' experience as
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practicing lawyer in Supreme Court or High Court or District Court is
required. Similarly, in case of post of Forensics Officer, 7 years' experience
with Forensics organization or Forensics Laboratory is required. In both cases,
experience is linked with post. A law graduate having experience with an
organization is ineligible. Similarly, a graduate of Forensics Science may not
be working with Forensics Organization or laboratory. This Shows that
respondent, wherever necessary, linked experience with job and not
qualification. The respondent has raised lame excuse that domain experts have
found experience of candidates irrelevant. It is true that this Court cannot
substitute opinion of domain expert, nonetheless, cannot ignore patent
irregularity, irrationality and absurdity.
34. The respondent had advertised posts for Bureau of Investigation
and selected candidates are supposed to have degree in IT/Computer
Science/Electronic with experience of twelve years. They have to assist police
officials to crack hard criminal cases, thus, public interest in the appointment
of candidates is involved. The advertisement consisted of two stages of
selection process and Stage-II comprised of documents scrutiny. The selection
had to be made on the basis of written test and experience of 12 years. Nature
of experience was not specified in the advertisement. Specification of
'relevant work experience' after declaration of result was contrary to
advertisement, rules of game and legitimate expectation of the candidates.
35. The Stage-I consisted of written test of 100 multiple choice
questions carrying 400 marks. In the advertisement, syllabus for each post was
notified. The syllabus for the post of CDFO comprised of Digital Forensic
Tools (40 marks), Digital Forensics (40 marks), Computer Forensic Tools (60
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marks), Windows Systems and Artifacts (40 marks), Mobile Phone Forensics
(60 marks), Introduction to Network Security and Associated Techniques (40
marks), Language-English (32 marks), Punjabi (28 marks), General
Awareness (20 marks), Quantitative Aptitude (20 marks) and Mental Logical
Ability (20 marks). The syllabus was directly linked with post and petitioners
cleared the written test. There was no viva voce or practical test which
indicated that knowledge of candidates was assessed on the basis of written
test. In the absence of interview or practical test, there was no reason to
disbelieve experience possessed by candidates which was directly linked with
their educational qualification and at the time of release of provisional list was
also accepted. The domain experts have accepted experience for the post of
ITO/ITA, thus, there was no reason to reject when required experience for the
post of ITO/ITA and CDFO is same and ITO is feeder cadre of CDFO. An
employee working on the post of ITO would not get experience of CDFO.
36. From the above discussion, it comes out that in the advertisement
multiple 'terms and conditions' were jotted down. In case of other posts
'experience' was directly linked with the post but it was not so in case of
ITA/ITO/CDFO. The recruitment board after scrutiny of documents initially
accepted experience of short-listed candidates and issued provisional select
list. The experience prescribed for the post of ITO/ITA and CDFO is same.
The respondent has accepted same experience for the posts of ITO/ITA and
rejected for the post of CDFO. Post of ITO is feeder cadre of CDFO. No
oral/practical test was prescribed and written test comprised of different
subjects directly linked with post. There is no material disclosing that
candidature of everyone was rejected in the public interest. The petitioners
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cleared written test and they were wielding experience linked with educational
qualification, thus, right of legitimate expectation accrued to them. The
respondent after releasing provisional list of selected candidates decided to
link experience with post which culminating in rejection of all the candidates.
37. In the wake of above discussion and findings, this Court finds
that rejection of all the candidates on the basis of criteria evolved after release
of provisional list was contrary to terms & conditions of the advertisement
and doctrine of legitimate expectation recognized by Supreme Court. The
respondent was duty bound to complete recruitment process as per
advertisement. Thus, the respondents are hereby directed to reconsider case of
all the short-listed candidates as per terms and conditions of the
advertisement. The needful shall be done within 2 months from the date of
receipt of certified copy of this order.
38. The petitions stand disposed of in above terms.
39. All pending applications also stand disposed of.
(JAGMOHAN BANSAL)
JUDGE
19.03.2024
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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