Md. Samim Miah vs The State Of Tripura
2021 Latest Caselaw 239 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA

                             W.A. 172 of 2020

   Md. Samim Miah
   S/o Md. Ahid Miah,
   R/o vill- Bhangarpar, Sonamura,
   PO and PS- R. K. Pur.
   District- Gomati Tripura
                                                       -----Appellant(s)
                                Versus

1. The State of Tripura,
   represented by its Secretary,
   Department of Fire Service, Government of Tripura,
   PO-Kunjaban, PS-New Capital Complex, District - West Tripura
2. The Director
   Department of Fire Service,
   Government of Tripura,
   PO - Kunjaban, PS - New Capital Complex,
   District - West Tripura
3. The Joint Director
   Department of Fire Service, Government of Tripura,
   PO - Kunjaban, PS - New Capital Complex, District - West Tripura
4. Sri Atul Debbarma
   Chairman of Interview Board,
   Notice to be served through the respondent no. 3.

5. Sri Tapan Kr. Roy Member of Interview Board, Notice to be served through the respondent no. 3.

6. Sri Nanda Lal Das Member Of Interview Board, Notice to be served through the respondent no. 3.

7. Sri Maharam Debbarma Member Of Interview Board, Notice to be served through the respondent no. 3.

8. Sri Rashiram Debbarma Member of Interview Board, Notice to be served through respondent no. 3.

9. Md. Bashir Ahamed S/O Md. Sahid Miah, R/O Vill and PO Kushamara, PS - Kakraban, Udaipur, District - Gomati Tripura

10. Sri Parthajit Shil S/O Sri Babul Shil, R/O Vill East Jalefa, PO Jalefa Bazar, Sabroom, District - South Tripura

11. Sri Samir Nath Bhowmik S/O Sri Balai Nath Bhowmik, R/O Vill- Badharghat Matri Palli, PO: Siddhi Ashram, PS- Amtali, District - West Tripura

12. Sri Subarna Chakraborty S/O Sri Madhusudhan Chakraborty, R/o vill- Lalcharra, Poand PS - Khowai, District - Khowai Tripura

-----Respondent(s)

For Appellant(s) : Mr. A. Bhowmik, Adv.

MR. Ankan Tilak Paul, Adv.

Mr. R. Mazumdar, Adv.

For Respondent(s) : Mr. D. Bhattacharjee, GA Ms. P Sen, Adv.

Mr. S M Chakraborty, Sr. Adv.

Ms. Ankita Pal, Adv.

Mr. S Bhattacharjee, Adv.

   Date of hearing                : 22.01.2021
   Date of pronouncement          : 26.02.2021
   Whether fit for reporting      : NO


                  HON'BLE MR. JUSTICE S. TALAPATRA
               HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                               Judgment & Order

   (S. Talapatra, J)

By means of this intra-court appeal, the appellant has

challenged the judgment and order dated 02.07.2020 delivered in

WP(C) 569 of 2019 which is a common judgment passed in two

analogous writ petitions. Apart from the writ petition filed by the writ

petitioner [the appellant herein], one Amit Kumar Das on identical

grievance had filed another writ petition being WP(C) 961 of 2018. Both

the writ petitions have dismissed by the said judgment and order dated

02.07.2020.

[2] The petitioner filed the writ petition as he was not selected

in the post of fireman (Group-C). By the Advertisement No.4605/4-

9(Fireman)/TFS/2015 388, vacant posts of Fireman (Group-C) were

notified for filling up. The petitioner being eligible for the said post

participated in the selection process. The petitioner succeeded in the

physical measurement test and he was therefor called for written test.

The petitioner had completed successfully written examination.

Pursuant to the said exam inaction, the petitioner was called in the

viva-voce test. According to him, the members of the interview board

asked him some general questions, to which the petitioner answered

correctly. According to him, his interview lasted for 1.5 minutes and

thereafter he was asked to leave. When the final common merit list was

released, the name of the petitioner did not feature.

[3] While publishing the select list, the break-up of marks

secured by the candidate in the written examination and the viva voce

test was not provided. Thereafter, the petitioner sought the disclosure

of detailed information under the RTI Act. But, he was not given the

information of the other selected candidates on the ground that those

persons objected to such disclosure as those were personal information.

Subsequent to that, the petitioner was served with the break up and the

marks obtained by him in the written examination and in the oral test,

wherefrom, it surfaced that the petitioner secured 25 marks in the

written examination and 4.25 marks in the oral interview. Thus, the

aggregate of the petitioner was 29.25 marks.

[4] Being aggrieved, the petitioner filed the writ petition urging

this court for directing the respondents to take fresh interview, pursuant

to the advertisement No.4605/4-9(Fireman)/TFS/2015 and

alternatively directing the respondents for appointing him to the post of

Fireman (Group-C) based on the result of fresh interview. In the writ

petition, the petitioner has made serious allegation. By the

communication dated 02.03.2019 (Annexure-4 to the writ petition), that

the petitioner has been apprised that the last selected UR category

candidate secured 38 marks in total with 25 marks in the written

examination and 15 marks in the oral test.

[5] The petitioner has seriously agitated that the oral test is

supplementary test to assess personal trait of a candidate (see Ashok

Kumar Jadav vs. State of Haryana reported in (1985) 4 SCC 417). In

Ashok Kumar (supra), the apex court has illustrated the importance of

giving primacy to marks of the written examination over the vivo-voce

test. At the same time, it has been observed that the written test is not

enough to evaluate a candidate's imitativeness, alertness,

resourcefulness, dependableness, cooperativeness, capacity for clear

and logical presentation, effectiveness in discussion, effectiveness in

meeting and dealing with others, adaptability, judgment, ability to make

decision, ability to lead, and above all, intellectual and moral integrity.

[6] According to the petitioner, there had been no time to test

the various traits of personality. In the viva-voce test, the petitioner has

been given 4.25 marks. The petitioner was one of the highest scorer in

the written examination. Despite that he could not make his place in the

merit list. Thus, according to him, the entire interview /viva voce test is

unsustainable and liable to be interfered with. The respondents filed the

reply and raised serious objection at to the maintainability of the writ

petition. According to the respondents, those who have been appointed

were having higher merit in comparison to the person who could not be

selected.

[7] The respondents have stated that the petitioner has made

turn around to take the calculated chance of appointment by filing the

writ petition. Thus, the pertinent questions that have emerged are (i)

whether the petitioner has proved that the selection process had not

visited by illegalities and (ii) whether the principle of estoppels by

conduct would apply against the petitioner.

[8] Learned Single Judge has observed that no allegation of

mala-fide have been made against the members of the interview panel.

That apart, the candidates who have been selected and appointed might

be affected by the final outcome but they have not been impleaded. In

their absence, no adjudication is permissible, inasmuch as they have

the right to have their say and behind their back no decision can be

taken. If taken, that would be violation of principles of natural justice. It

has been also observed that by series of decisions, the apex court has

well settled the principle that anyone participating in the process

knowing fully, cannot challenge the validity of the selection process. The

said principle is founded on the premise the one who submits towards

the selection process voluntarily and thus participated without any

protest, surely would not have challenged the validity of such a

selection list.

[9] However, estoppel by conduct cannot be brought against

the person seeking relief showing that serious illegality is committed in

the selection process on in oral interview. But in the case in hand, the

petitioner has not pointed out any such illegality to question the

selection process. Even though the petitioner has made some

allegations including that high marks has been disproportionately

allocated for oral interview and that has perpetrated the kind of

unexpected result. The total marks as allocated is 25 marks for oral

interview. The petitioner on the basis of performance in the selection

test was not placed in the select list. The petitioner has pointed out that

even in the written examination, the petitioner was not awarded one

mark for the correct answer he had given. The question was which date

is the Republic Day of India. In the reply, the respondents have acceded

that by not awarding one mark was an error. If that mark were given,

the petitioner would have secured total 26 marks in the written

examination and his grand total thus would have been 28 marks. Still,

the petitioner falls short of being selected. In absence of any

demonstrable illegality or irregularity in the conduct of the oral

interview, according to the learned Singel Judge, the relief as sought by

the petitioner cannot be granted. Even the delay in filing the petition

cannot be just brushed aside. This observation cannot be criticised as

there is material to show contrariwise.

[10] The petitioner was given 4.5 marks in the oral interview.

Thus, his grand total was 29.25 marks. Last selected UR category

candidate got 38 marks. There is a huge gap between the last selected

UR category candidate and the petitioner. The petitioner has produced

the list of all un-reserved category candidates and the marks allotted to

them. Since the petitioner secured 29.25 marks, he was lagging far

behind from the last person selected person in the UR category. As no

illegality has been demonstrated, the petitioner cannot challenge the

outcome of the selection process after participating in the said process

knowing fully well how the candidates will be evaluated and hence, we

are of the view that learned Single Judge has not committed any error

by dismissing the writ petition.

However, in the circumstances, there shall no order as to

costs.

                     JUDGE                                     JUDGE




Dipak