Rajasthan High Court

Sachin Kuma Rairan vs M N I T And Anr on 13 July, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 9601/2015

Sachin Kuma Rairan son of Shri Devki Nandan Airan, aged about
23 years, R/o H.No.7, Sagar Enclave, Near Vidhaan                         Sabha
Nagar, Near Patrakaar Colony, Dholai, Mansarovar, Jaipur.
                                                                   ----Petitioner
                                   Versus
1. Malaviya National Institute of Technology Through its Director,
MNIT Campus, JLN Marg, Jaipur.
2. Registrar, Malaviya National Institute of Technology, MNIT
Campus, JLN Marg, Jaipur.
                                                                ----Respondents

For Petitioner(s) : Mr. Himanshu Jain For Respondent(s) : Mr. Ravi Chirania

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

13/07/2022

This writ petition has been filed by the petitioner with the

following prayer:-

"It is, therefore, humbly prayed that this Hon'ble Court be pleased to call for the entire record relating to the case of the Petitioners and after perusing the same may be pleased to accept and allow this writ petition:-

A. By appropriate writ, order or direction, respondents may be directed to give appointment to the petitioner on the post of Junior Engineer (Electrical) in pursuance to advertisement No.02\MNIT\ESTT\2014 (Annexure-1).

B. Any other appropriate order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

Brief facts of the case are that in pursuance to the

advertisement (Annx.1) inviting applications for appointment on

(2 of 15) [CW-9601/2015]

various posts including the post of Junior Engineer (Electrical), the

petitioner applied for the post of Junior Engineer (Electrical). It is

not in dispute that the petitioner qualified first three stages i.e. (i)

Screening Test (ii) Subjective Test and (iii) Trade Test and he was

the single candidate in the interview held for the post of Junior

Engineer (Electrical). However, his candidature was rejected by

the respondents due to "Not Found Suitable."

Grievance of the petitioner by filing the present writ petition

is that the petitioner was the only candidate who after qualifying

the first three stages reached to the stage of interview and he

being the single candidate, he ought to have been considered for

appointment for the post of Junior Engineer (Electrical).

Counsel for the petitioner submits that the respondents in an

arbitrary manner have rejected the candidature of the petitioner

for appointment on the post of Junior Engineer (Electrical) despite

the fact that the petitioner has cleared all the first three stages

and the petitioner was the only candidate in the interview, as such

should have been considered for appointment on the post of

Junior Engineer (Electrical). Counsel further submits that while

taking decision of rejecting his candidature for appointment on the

post of Junior Engineer (Electrical), no reasonable justification has

been assigned by the respondents, which shows their arbitrary

exercise of power.

In support of his contention, counsel relied upon the

judgment passed by the Hon'ble Supreme Court in the matter of

Valsala Kumari Devi M. Vs. Director, Higher Secondary

Education & Ors. reported in (2007) 8 SCC 533 decided on

25.09.2007 where in para 11 it has been held as under:-

(3 of 15) [CW-9601/2015]

"11) The expression "subject to seniority and suitability" occurring in G.O. dated 27.6.1990 does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. In view of the distinction between the appointment by promotion from General Education Subordinate Service and an appointment to the 75% vacancies ear- marked for direct recruitment, we are of the view that the finding arrived at by the Director, Higher Secondary School, Thiruvananthapuram, Kerala that seniority is not the criterion for 'appointment by promotion to HSST' is erroneous and is not in terms of the Government Orders referred to above. Though in the order, it is stated that the 5th respondent is more suitable than the appellant, as rightly pointed out by learned counsel appearing for the appellant, it has not been shown or indicated the reasons or grounds for arriving such decision that the 5th respondent was found more suitable than the appellant for the post. We are also in agreement with the contention that the Director has mechanically accepted the decision of the Selection Committee that the 5th respondent is more suitable than the appellant without reference to selection for appointment by promotion to HSST against 25% quota ear-marked for qualified High School Assistants. We are of the view that the Director has committed an illegality in upholding the selection of the 5th respondent for appointment to the post of HSST. Further the 5th respondent has been preferred to the appellant for the reason that his main subject in B.A. is History which is totally irrelevant for promotion to HSST from among HSAs. In G.O. dated 27.6.1990 the qualification prescribed is a second class Master's Degree in the concerned subject with B.Ed. It is relevant to point out that the appellant and the 5th respondent have obtained M.A. Degree from Mysore University and the 5th respondent took B.Ed with Social Studies. The other reason given by the Selection Committee for preferring 5th respondent is that he has proficiency in English, Kannada and Malayalam whereas the appellant has proficiency in English and Malayalam. As

(4 of 15) [CW-9601/2015]

rightly pointed out by learned counsel appearing for the appellant, once the requirement of the prescribed qualification is satisfied, the selection must be made on the basis of the seniority and suitability and there is no scope for making comparison of qualifications or comparative assessment of suitability. The expression 'suitability' means that a person to be appointed shall be legally eligible and 'eligible' should be taken to mean 'fit to be chosen'."

Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Secy. (Health) Deptt. of

Health and F.W. and Ors. vs. Anita Puri and Ors. reported in

(1996) 6 SCC 282 decided on 30.08.1996 where in para No.7 it

has been held as under:-

7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is higher qualification than the minimum qualification required for the post and the Respondent No. 1 was having that degree. The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of a person for the post, the expert body like Public

(5 of 15) [CW-9601/2015]

Service Commission in the absence of any statutory criteria has the discretion of evolving its mode evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held; his general aptitude for the job to be ascertained in course of interview, extra- curriculum activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held.

In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent No. 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.

Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Praveen Singh vs. State

of Punjab and Ors. reported in AIR 2001 SC 152 decided on

10.11.2000 where in paras No.11 to 15 it has been held as

under:-

"11. A close look at the qualification as prescribed and the information sheet, however, in our view would depict otherwise. The qualifications prescribes that the candidates will be required to qualify for the following written test at the time of recruitment and the qualification standard in the test has been fixed to be at 33% pass marks in each paper with 45% however in the aggregate (emphasised) and paragraph 4 of the Information sheet, as above, in no uncertain term records that no candidate shall be eligible to appear in the viva voce test unless he obtains 33%

(6 of 15) [CW-9601/2015]

marks in each paper and 45% marks in the aggregate.

12. Reading the two requirements as above, in our view question of having the written test written off in the matter of selection does not and cannot arise. Had it been the intent of the Service Commission, then and in that event question of there being a totality of marks would not have been included therein and together with specified marks for viva voce tests, would not have been there neither there would have any requirement of qualifying pass marks nor there would have any aggregate marks as noticed above.

13. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok & Ors. v. State of Karnataka (1992) ILLJ87SC. Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. Of course, there are posts and posts, where interviews can be a safe method of appointment but to the post of a Block Development Officer or a Panchayat Officer wherein about 4500 people applied for 40 posts, interview cannot be said to be a satisfactory method of selection though however it may be a part thereof-In the factual score we have the advantage of having the Rules prescribing the mode and method of appointments and specific marks are earmarked for written examinations of various subjects together with totality of marks for viva voce test. As a matter of fact out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself - why these 400 marks allotted for a written examination in four different subjects, if interview was to be the guiding factor: there has been however, no answer to the same excepting that the Court ought not to interfere in the matter of selection process in the absence of mala fides true it is that in the event the selection is tainted with mala fides, it would be a plain exercise of

(7 of 15) [CW-9601/2015]

judicial power to set right the wrong but is it also realistic to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally, superfluous and of no effect at all. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and as has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness.

14. The action of the respondent Commission thus is wholly unreasonable, unfair and not in accordance with the declared principles. Appointment procedure is evident from the documentary evidence disclosed in the proceedings and the Commission ought to have taken note of the written examination results as well. As a matter of fact the High Court while recording its acceptance to the method of selection on the basis of the viva voce test only, was pleased to observe as below:

However, we consider it absolutely imperative to observe that the Government should get the rules examined and make proper amendment so that its intention of making distinction between qualifying test and viva voce test does not remain obscure. We also direct the PPSC to take extra precautions while issuing any future advertisement so that no inconsistency remains between the rules and the contents of the advertisement.

15. The High Court admittedly therefore found inconsistency and obscurity in the entire process and as a matter of fact, the High Court has suggested incorporation of proper amendments in the rules so as to avoid confusion and obscurity. We are however, constrained to note that having come to a finding about the inconsistency

(8 of 15) [CW-9601/2015]

and obscurity in the process, the High Court thought it fit to decry the claim of the writ petitioner being the appellant herein on the plea of the employers right but the documents through which the right flows indicates a contra situation and as such the action suffers from the vice of arbitrariness and unreasonableness warranting intervention of this Court. On the wake of the above, the order of the High Court stands set aside and quashed. Consequently the appointments are also set aside. The Public Service Commission is directed to complete the process of selections in terms of the existing rules so that both the written and the viva voce test be taken into consideration for the purpose of effecting appointments. It is made clear that no further advertisement or examination shall take place but reconsideration of the entire process be effected upon due reliance on the written as well as viva voce test. The process be completed within a period of 3 months from the date thereof. It is further made clear that the appointments if any, already made shall continue, but shall be subject to the further results which may be declared by the Public Service Commission in regard to filling up of the posts of Block Development and Panchayat Officers. The appeal thus stands allowed. There will however be no order as to costs."

Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Shri Parvez Qadir Vs.

Union of India (UOI) reported in AIR 1975 SC 446 decided on

16.10.1974 where in para No.18 & 19 it has been held as under:-

18. It is also contended that regulation 5 of the Initial Recruitment Regulations regarding adjudging of the suitability is not valid. The word 'suitability' itself is correlated with the object of recruitment, namely, that a person has to be considered suitable for appointment to a superior service which itself furnishes the norm that he is considered suitable having regard to his service in the State Forest Service. having regard to his service in the State

(9 of 15) [CW-9601/2015]

Forest Service. This in turn refers only to the past records of the service in the State as an officer of the State Forest Service. The Special Selection Board ,under regulation 5(2)(a) has to adjudge the suitability of an officer from his service records which form the basis of the preparation of the list and the list so prepared after consideration of the records would reflect the overall assessment of the officers of the State Forest Service.

19. The learned Attorney General has referred us to the decision of this Court in S. P. Jinadathappa v. R. P. Sharma and Others [1962]2SCR22 of that decision the question whether the words "suitable tenant" were vague in the context in which they were used, was considered. it was there held that though the expression "suitable" was not defined, it does not require a definition, because any man of experience would know who is a suitable tenant. This decision has been accordingly left to the Rent Controller. On the other hand, the decision referred to by the petitioner's learned Advocate in Harakchand Ratanchand Benthia and Ors.

etc.v. Union of India and ors.

[1970]1SCR479 has no application, in that the expression "suitability of the applicant" for the grant of a licence does not provide any objective standard or norm. Each case has to be viewed in the context in which the words "suitability" or "suitable" is used, the object of the enactment and the purpose sought to be achieved. In any case the adjudging of suitability as has been suggested by the method of viva- voce, as held by this Court in Janki Prasad Parimoo & Ors etc. etc. v. State of Jammu & Kashmir & Ors. [1973]3SCR236 is unsatisfactory. The criteria laid down in the rules and regulations on this aspect do, in our view, provide sufficient indication as to the norms applicable for adjudging suitability, namely, the past performance of the officer as can be gleaned from his confidential and other records if they exist in respect of that officer."

Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Suman Gupta and Ors.

(10 of 15) [CW-9601/2015]

vs. State of J & K and Ors. reported in AIR 1983 SC 1235

decided on 19.09.1983 where in paras No.6 & 7 it has been held

as under:-

"6. For the purpose of these cases, we shall proceed on the assumption that national integration, which is undeniably in itself a highly commendable and laudable objective, will be effectively served by a policy encouraging the admission of candidates of one State to seats in the Medical Colleges of another State. After considering the matter carefully, we confess, we are unable to subscribe to the view that the selection of candidates for that purpose must remain in the unlimited discretion and the uncontrolled choice of the State Government. We think it beyond dispute that the exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason- relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting its valid exercise than its governance by F these twin tests. A stream of case law radiating from the now well known decision of this Court in Maneka Gandhi v. Union of India MANU/SC/0133/1978 : [1978]2SCR621 has laid down in clear terms that.-

7. Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.To contend that the choice of a candidate selected on the basis of his ability to project the culture and ethos of his home State must necessarily be left to unfettered discretion of executive authority is to deny a fundamental principle of our

(11 of 15) [CW-9601/2015]

constitutional life. We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether. Proceeding from there, it is evident that if THE State Government desires to advance the objective of national integration it must adopt procedures which are reasonable and are related to the objective. In this Age of Reason, all law must measure upto that standard, and necessarily so also must all executive acts. Viewed in this context, the claim of the State Government in these cases that the nature of the objective and the means adopted to serve it entitle it legitimately to vest in itself an absolute power in choosing candidates for nomination cannot be allowed to prevail. It is Incumbent on the State Government to adopt a criterion or restrict its power by reference to norms which, while designed to achieve its object, nevertheless confine the flow of that power within constitutional limits. We are not convinced that an adequate system of standards cannot be, devised for that purpose. Tested on the touchstone of our constitutional values, the claim of the State Government to the content of the power assumed by it must, in our opinion, be declared invalid."

Counsel appearing on behalf of the respondents vehemently

opposed the writ petition and submitted that it is no doubt true

that the petitioner was the only candidate in the interview but that

does not give any right to the petitioner of his selection. Counsel

further submitted that as per the terms & conditions of the

advertisement, the final selection shall only be done by the

Appointing Authority on the recommendation of the Selection

(12 of 15) [CW-9601/2015]

Committee and once the selection committee did not find the

petitioner suitable for appointment on the post of Junior Engineer

(Electrical), the petitioner cannot claim appointment as a matter

of right.

In support of the contentions, counsel for the respondents

relied upon the provisions contained in Section 23 of NIT Statute

2007 & para No.12 thereof reads as under:-

"12.At the time of interview, the Selection Committee shall examine credentials of all candidates who have been called for the interview, interview the eligible candidates and recommend the appointment of the most suitable candidate to the competent authority for approval."

Counsel further submits that in view of the aforesaid

provision, the candidature of the petitioner has been rightly

rejected by the Selection Committee, and the petitioner has no

case in his favour and the writ petition filed by the petitioner

deserves to be dismissed.

He relied upon the judgment passed by the Hon'ble Supreme

Court in the matter of Dalpat Abasaheb Solunke and Ors. Vs.

Dr. B.S. Mahajan and Ors. reported in 1990 (1) SCC 305,

wherein it has been held as under:-

"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved

(13 of 15) [CW-9601/2015]

mala fides affecting the selection etc. it is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected that candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."

The Hon'ble Supreme Court further has examined the powers

of the selection committee in the case of Secretary (Health)

Department of Health and F.W. & Anr. Vs. Dr. Anita Puri &

Ors. reported in 1996 Supp.(s) SCR 361 wherein it has been

held as under:-

"We are unable to accept this contention. This Court in the case of Ajay Hasia Etc. v. Khalid Majib Sehravardi and Others Etc., [1981] 1 S.C.C. 722, while considering the Case of selection, wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any consitutional infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the appellants arid the same necessarily has to be made only by allotting marks on different facets and them awarding marks in respect of each facet of a candidate and finaiiy evaluating his merit, it is too well settled that when a Selection is made by an expert body like public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, ihe courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers

(14 of 15) [CW-9601/2015]

suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation. Thus, considered we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was arbitrary or that the selection made by the Commission was in any way vitiated."

The Hon'ble Supreme Court has further examined the powers

of the selection committee in the case of M.V. Thimmaiah and

Ors. vs. Union Public Service Commission and Ors. reported

in (2008)2 SCC 119 where in para 12 it has been held as

under:-

"12. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion."

Counsel further submitted that the decision of the selection

committed can only be interfered with if it suffers with mala fide,

which is not the case of the petitioner.

Heard counsel for the parties and perused the record.

This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly, although the decision of the

Selection Committee has been challenged by the petitioner on the

ground of arbitrariness and mala fides on the part of Selection

Committee but no person by name has been impleaded as party

respondent in this writ petition; secondly, the decision taken by

the Selection Committee cannot be challenged except on the

(15 of 15) [CW-9601/2015]