Tripura High Court
Smt. Jhulan Rani Debbarma vs The State Of Tripura on 11 March, 2024
Author: Arindam Lodh
Bench: Arindam Lodh
[1]
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.452 of 2022
Smt. Jhulan Rani Debbarma, Age-38
W/o Bijoy Kumar Kalai,
R/o: Vill & P.O- Kanchan Mala,
P.S- Srinagar, Dist: Sepahijala, Tripura
....Petitioner(s)
Versus
1. The State of Tripura
To be represented by the Secretary, Department of law,
Govt. of Tripura, New Secretariat Complex, Kunjaban,
Agartala, West Tripura, PIN 799010
2. The District & Sessions Judge,
West Tripura, Agartala, O/o the District & Sessions Judge,
West Tripura District, Agartala
3. The Additional District & Sessions Judge,
West Tripura District, Agartala, O/o the District & Sessions Judge,
West Tripura District
4. Sri Rajesh Debnath,
S/o Sri Sudhangshu Debnath, R/o: Vill: North Brajapur,
P/o: Bishalgarh, Dist: Sepahijala
5. Jakir Miah,
S/o: Md Abdul Rab, R/o: Vill & PO- Khupilong,
PS- Killa, Dist: Gomati Tripura
6. Smt Subangkari Podder,
W/o: Sri Suraj Debbarma, R/o: Vill : AD Nagar Road no 6,
P.O & P.S: AD Nagar, Dist: West Tripura
7. Sri Prasanjit Debnath,
S/o Lt Tapan Debnath, R/o Vill: North Barjapur,
P.O: Brajapur, P.S: Bishalgarh, Dist: Sepahijala
8. Sri Sudip Nath Bhowmik,
S/o Lt Abinash Chandra Nath Bhowmik,
R/o: Vill: Dhaleshwar, Road No. 9, P.O: Dhaleshwar,
P.S: East Agartala, Dist: West Tripura
9. Smt Purnima Roy,
W/o Sri Bhasan Chandra Paul, R/o: Vill: Ranirbazar,
Bridhanagar, P.O & P.S: Ranirbazar, Dist: West Tripura
10.Smt Payel Roy,
D/o Sri Prantosh Roy, R/o: Vill: A.D Nagar, Road No. 07, P.O & P.S: A.D
Nagar, Dist: West Tripura
11. Sri Sukanta Das,
S/o: Sri Jitendra Kumar Das R/o: Vill: Sonamura (East Side of Ramesh
Boarding) P.O. RK Pur, PS RK Pur,
District: Gomati Tripura, PIN: 799120
12.Smt. Ruma Das,
[2]
W/o: Sri Rakesh Das, D/o: Sri Dilan Das R/o: Sat Dubia, P.O: Sidhai
Mohanpur, District: West Tripura, PIN: 799210
13.Sri Sujit Sarkar,
S/o: Lt. Ranjit Sarkar, R/o: Belabar, School Tilla, P.O: SD Mission, PS:
Amtali District: West Tripura, PIN:799003
14.Sri Abdul Malik,
S/o: Lt. Eshad Ali, R/o: East Durgapur, P.O: Kirtan Tali, P.S: Kailashahar,
District: Unakoti, Tripura, PIN:799279
15. Sri Birajit Das,
S/o: Lt. Birendra Kumar Das, R/o: Near Hospital Panisagar, P.O: Panisagar,
District: North Tripura, PIN:799260
16. Sri Haradhan Das,
S/o: Lt. Rajendra Das, R/o: Ambedkar Pally, Jogendra Nagar, P.O: Jogendra
Nagar, P.S: Agartala College, District: West Tripura, PIN:799004
17. Sri Gautam Nama,
S/o: Lt. Gopal Nama, R/o: Masterpara, Melagarh, P.O: Rudijala, P.S:
Melagarh, District: Sepahijala, Tripura, PIN:79915
(Notice to the Respondents nos 4 to 17 may be served through the District
and Sessions Judge, West Tripura, as they are serving in the post of Group-D
(Peon Grade) under the District and Sessions Judge, West Tripura District)
....Respondent(s)
WP(C) No.596 of 2022
Smt. Krishnaika Debbarma
W/o Smt. Rupamala Debbarma,
R/o: Vill: Heamara, P.O- Baikunthapur,
P.S- Sidhai Mohanpur, Dist: West Tripura, Pin:799211
....Petitioner(s)
Versus
1. The State of Tripura
To be represented by the Secretary, Department of Law, Govt. of Tripura,
New Secretariat Complex, Kunjaban, Agartala, West Tripura, PIN 799010
2. The District & Sessions Judge,
West Tripura, Agartala, O/o the District & Sessions Judge, West Tripura
District, Agartala
3. The Additional District & Sessions Judge,
West Tripura District, Agartala, O/o the District & Sessions Judge, West
Tripura District
4. Sri Rajesh Debnath,
S/o Sri Sudhangshu Debnath, R/o: Vill: North Brajapur, P/o: Bishalgarh,
Dist : Sepahijala
5. Smt Subangkari Podder,
W/o: Sri Suraj Debbarma, R/o: Vill : AD Nagar Road no 6, P.O & P.S: AD
Nagar, Dist: West Tripura
6. Sri Sudip Nath Bhowmik,
S/o Lt Abinash Chandra Nath Bhowmik, R/o: Vill: Dhaleshwar, Road No. 9,
P.O: Dhaleshwar, P.S: East Agartala, Dist: West Tripura
[3]
7. Sri Sukanta Das,
S/o: Sri Jitendra Kumar Das R/o: Vill: Sonamura (East Side of Ramesh
Boarding) P.O. RK Pur, PS RK Pur, District: Gomati Tripura, Pin: 799120
....Respondent(s)
WP(C) No.597 of 2022
Sri Debasish Bhattacharjee
S/o Lt. Haridhan Bhattacharjee
R/o: Vill: Office Tilla, Bishalgarh,
P.O+PS:- Bishalgarh, Sepahijala, Tripura, Pin: 799102
....Petitioner(s)
Versus
1. The State of Tripura
To be represented by the Secretary, Department of Law, Govt. of Tripura,
New Secretariat Complex, Kunjaban, Agartala, West Tripura, PIN 799010
2. The District & Sessions Judge,
West Tripura, Agartala, O/o the District & Sessions Judge, West Tripura
District, Agartala
3. The Additional District & Sessions Judge,
West Tripura District, Agartala, O/o the District & Sessions Judge, West
Tripura District
4. Sri Rajesh Debnath,
S/o Sri Sudhangshu Debnath, R/o: Vill: North Brajapur,
P/o: Bishalgarh, Dist : Sepahijala
5. Smt Subangkari Podder,
W/o: Sri Suraj Debbarma, R/o: Vill : AD Nagar Road no 6,
P.O & P.S: AD Nagar, Dist: West Tripura
6. Sri Sudip Nath Bhowmik,
S/o Lt Abinash Chandra Nath Bhowmik, R/o: Vill: Dhaleshwar, Road No. 9,
P.O: Dhaleshwar, P.S: East Agartala, Dist: West Tripura
7. Sri Sukanta Das,
S/o: Sri Jitendra Kumar Das R/o: Vill: Sonamura (East Side of Ramesh
Boarding) P.O. RK Pur, PS RK Pur, District: Gomati Tripura, Pin: 799120
....Respondent(s)
WP(C) No.632 of 2023
Sri Sujit Das
S/o- Sri Shibu Das, Village-Gorkhabasti, Nutanpalli, P.O-Kathalbagan, P.S-
NCC, District-West Tripura Age-... years.
....Petitioner(s)
Versus
1. The State of Tripura
To be represented by the Secretary, Department of Law, Govt. of Tripura,
New Secretariat Complex, Kunjaban, Agartala, West Tripura, PIN 799010
2. The District & Sessions Judge,
West Tripura, Agartala, O/o the District & Sessions Judge, West Tripura
District, Agartala
[4]
3. The Additional District & Sessions Judge,
West Tripura District, Agartala, O/o the District & Sessions Judge, West
Tripura District
4. Sri Sukanta Das,
S/o: Sri Jitendra Kumar Das R/o: Vill: Sonamura (East Side of Ramesh
Boarding) P.O. RK Pur, PS RK Pur, District: Gomati Tripura, Pin: 799120
5. Smt. Ruma Das,
W/O:- Sri Rakesh Das, D/o: Sri Dilan Das R/o: Sat Dubia, P.O: Sidhai
Mohanpur, District: West Tripura, Pin:799210
6. Sri Sujit Sarkar,
S/o: Lt. Ranjit Sarkar, R/o: Belabar, School Tilla, P.O: SD Mission, PS:
Amtali District: West Tripura, PIN:799003
7. Sri Birajit Das,
S/o: Lt. Birendra Kumar Das, R/o: Near Hospital Panisagar, P.O: Panisagar,
District: North Tripura, PIN:799260
8. Sri Haradhan Das,
S/o: Lt. Rajendra Das, R/o: Ambedkar Pally, Jogendra Nagar, P.O:
Jogendranagar, P.S: Agartala College, District: West Tripura, PIN:799004
9. Sri Gautam Nama,
S/o: Lt. Gopal Nama, R/o: Masterpara, Melagarh, P.O: Rudijala, P.S:
Melagarh, District: Sepahijala, Tripura
....Respondent(s)
For Petitioner(s) : Mr. Samarjit Bhattacharjee, Advocate
For Respondent(s) : Mr. Kohinoor N. Bhattacharyya, G.A
Mr. S. Dey, Advocate
Mr. P. Gautam, Advocate
Date of hearing and
Delivery of Judgment & Order : 11.03.2024
Whether fit for reporting : Yes
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
The above bunch of writ petitions involves similar and identical
points of law and facts, and as such these are taken up and heard together for
disposal with the consent of learned counsels appearing for the parties. The
case bearing No.WP(C)632/2023 has been taken as lead case on the basis of
the submission advanced by Mr. Samarjit Bhattacharjee, learned counsel
appearing for the petitioners in the above bunch of writ petitions.
2. In WP(C) 632/2023, the petitioner has prayed for following
reliefs:-
"i. Issue Rule upon the Respondents to show cause as to why
Writ in the nature of mandamus and/or Order or direction
shall not be issued whereby directing the Respondents nos 1 to
3 to conduct fresh Oral interview & on the basis of marks
obtained by the Petitioner in the fresh oral interview/viva voce
test, prepare the merit list and give appointment to the
Petitioner in the post of Group D(Peon grade) in pursuance to
the advertisement no 4314, dated, 24.04.15, issued by the
District & Sessions Judge, West Tripura, Agartala.
ii. Make the rules absolute.
iii. Call for records.
iv. Pass any further order/orders as this Hon'ble High Court
considered fit and proper."
3. Background facts of the case:-
3.1 The Office of the District & Sessions Judge, West Tripura,
Agartala had issued an advertisement dated 24.04.2015 [Annexure 2 to writ
petition no.WP(C) 632/2023 titled as Sujit Das Vs. The State of Tripura and
8 Ors.] for the purpose of appointment of Group-D employees. Many
candidates applied for recruitment in terms of the advertisement and they
participated in the written test as well as viva voce test. The Office of the
District & Sessions Judge under Notification dated 02.05.2017 [Annexure 3
to WP(C) 632/2023] published the result with the approval of the Hon'ble
High Court. From the Notification dated 02.05.2017, it is revealed that the
respondents, District Judiciary had indicated the marks of the respective
candidates which comprised the total marks obtained both in written and
viva voce test. Two candidates, namely, Jakir Miah and Sri Rajesh Debnath
had filed writ petitions[WP(C) 894 of 2018 and WP(C) 715 of 2018
respectively] before this Court, and a Coordinate Bench of this Court had
allowed the said two writ petitions to the extent indicated here-in-below:-
"[8] Be that as it may, this court is of the view that the marks
awarded to the petitioners in the interview are not only illogical
but also unintelligible. Having observed thus, the respondent
No.1 is directed to take fresh interview of the petitioners within
a month from the day of receiving a copy of this order. If they
are found suitable after aggregating the marks of the written
examination and the viva-voce test, the petitioners shall be
accommodated against the vacancy available at present and
accordingly they would be appointed.
[9] It is needless to say that the petitioners are to be
considered in the UR category and that is the reason why the
last candidate in the UR category has been referred.
[10] It is made absolutely clear the petitioners will not get any
benefit retrospectively. They would get all the benefits from the
date of their appointment only, if they are selected in the
process.
In the result, both the writ petitions are allowed to the
extent as indicated above."
3.2 It is pertinent to mention herein that the Office of the District &
Sessions Judge had allowed the said two writ petitioners to appear before the
Interview Board again and accordingly, on being selected were appointed
against Group-D posts considering them under UR category.
3.3 Thereafter, many candidates had filed similar writ petitions
asking for a direction of this Court to allow them to again appear before the
Interview Board. A Coordinate Bench of this Court had passed similar order
and those candidates appeared before the Interview Board and later on it was
noticed that all of them were found suitable and accordingly, were
appointed. In the same manner, as many as twelve candidates had been
appointed against Group-D posts. The last selection was made in the year
2022 when the Office of the District & Sessions Judge had issued a
Memorandum dated 02.03.2022 [Annexure 8 to WP(C) 632/2023] allowing
as many as seven candidates.
3.4 The appointment of those seven candidates as mentioned in the
Memorandum dated 02.03.2022, according to the present writ petitioners,
had given them a right to file the present writ petitions before this Court
asking this Court to pass a similar direction for constitution of a fresh
Interview Board and to allow them to appear before such Interview Board
for the purpose of viva voce test. It is relevant to note herein that all the
present writ petitioners had secured zero marks in the first round of viva
voce test. Pertinently, all the candidates who had filed the writ petitions and
subsequently selected had also secured zero mark in the viva voce test as it is
revealed from the publication of the first selection list [Annexure 4 to WP(C)
632/2023]
4. In the aforesaid background of facts, I have heard Mr. Samarjit
Bhattacharjee, learned counsel appearing for the petitioners, Mr. Kohinoor
N. Bhattacharyya, learned G.A appearing for the State-respondents, Mr. P.
Gautam, learned counsel appearing for the respondent-District & Sessions
Judge, West Tripura Judicial District, Agartala and Mr. S. Dey, learned
counsel appearing for the private-respondents in WP(C) No.452 of 2022.
5. Mr. Bhattacharjee, learned counsel appearing for the petitioners
has heavily relied upon the judgments passed by Coordinate Bench of this
Court wherein directions were passed to constitute fresh Interview Board
and allowed the petitioners to appear before such Interview Board for their
subsequent selection and appointments. Mr. Bhattacharjee, learned counsel
has drawn my attention to an observation made by the Coordinate Bench
while disposing of the writ petition No.894 of 2018 titled as Sri Jakir Miah
Vs. The District & Sessions Judge, West Tripura and 4 Ors. wherein it was
observed thus:-
"[7] Ms. Dhar, learned counsel appearing for the respondent
No.1, has produced the record of viva-voce test and that has
been perused by this court, but how marks were distributed is
not available from the records of interview. It is not denied that
the petitioners have participated in the said proceeding. It is,
however, accepted that some marks have been allotted on the
basis of the qualification. If that is so, it is really absurd how
the petitioners can secure zero in the viva- voce test. Even the
respondents No. 3, 4 and 5 have not stated the method they
have followed in the viva-voce. It is really strange that no
method has been recorded anywhere in the records, even not in
the sheet, where they have given marks. From one of the
sheets,................."
6. Mr. Bhattacharjee, learned counsel has further relied upon the
judgment dated 31.01.2022 in connection with case No. WP(C) 303/2021
titled as Sri Sukanta Das Vs. The District & Sessions Judge, West Tripura
and 4 Ors. along with other connected writ petitions wherein the learned
Single Bench of this Court at para-21 had observed thus:-
"21. But in the same judgment i.e. Ram Gopal (Supra), the
apex court having relied upon State of Uttar Pradesh v. Arvind
Kumar Srivastava reported in (2015) 1 SCC 347 has observed
that the normal rule is that when a particular set of employees
is given relief by the court, all other identically situated persons
need to be treated alike by extending that benefit. Not doing so,
would amount to discrimination and would be violative of
Article 14 of the Constitution of India."
7. While disposing of a bunch of writ petitions in Sri Sukanta
Das(supra) , a Coordinate Bench of this Court had passed the following
directions:-
"26. As the petitioners are situated in the same background,
they are also entitled to the reliefs as provided in a series of
decision passed by this court starting from Jakir Miah (supra)
to Sudip Nath Bhowmik (supra). As such, all the writ petitions
are disposed of with the following reliefs:
(i) The respondents shall constitute a fresh interview
committee which would comprise of the same level
(but not necessarily the same judicial officers) of
officers as in the original interview committee and
take a fresh interview of the petitioners;
(ii) This shall be done within a period of four months
from today;
(iii) On the basis of the marks that may be allotted
pursuant to such fresh interviews and the marks
scored by the petitioners in the written examination, if
they deserve selection, they shall be appointed to the
said post on the existing or next available vacancies;
(iv) Such appointments shall be prospective and shall
carry no benefits of the past period;
(v) Entire exercise shall be completed within a period
of four months from today."
8. Laying enough emphasis on the above observation made by the
Coordinate Bench of this Court in the aforesaid judgments, Mr.
Bhattacharjee, learned counsel for the petitioners submits that the present
petitioners being similarly situated are entitled to get similar reliefs and this
Court should pass a direction upon the District & Sessions Judge, West
Tripura to constitute fresh selection board for taking viva voce test involving
the petitioners. Mr. Bhattacharjee, learned counsel has candidly submitted
that the present writ petitions should not be dismissed on the ground of delay
and laches for the simple reason that the last selection was made in the year
2022 under notification dated 02.03.2022.
9. Opposing vehemently to the reliefs sought for by the present
writ petitioners, learned G.A appearing for the respondents-State of Tripura
has submitted that the present writ petitions are badly barred by doctrine of
delay and laches. According to learned G.A, if this process is going on, then,
it will be seen that thousands of writ petitions will come up before this Court
to allow them to appear before freshly constituted Interview Board.
10. Learned G.A has drawn the attention of this Court as regards
the parameters laid down by the Supreme Court in the case of State of Uttar
Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors. reported in (2015)
1 SCC 347 for consideration of selection of candidates and the law of
discrimination. I have perused the said parameters which are laid down by
the Hon'ble Supreme Court at para 22. To attract the principle of delay and
laches, Mr. Bhattacharyya, learned G.A has relied upon the judgment passed
in Bharat Sanchar Nigam Ltd Vs. Ghanshyam Dass & Ors reported in
(2011) 4 SCC 374 wherein it was observed that where only the affected
parties approach the court and relief is given to those parties, the fence-
sitters who did not approach the court cannot claim that such relief should
have been extended to them thereby upsetting or interfering with the rights
which had accrued to others. In Jagdish Lal and others v. State of Haryana
and others [(1997) 6 SCC 538], the appellants who were general candidates
belatedly challenged the promotion of Scheduled Caste and Scheduled Tribe
candidates on the basis of the decisions in Ajit Singh Januja v. State of
Punjab [(1996) 2 SCC 715], Union of India v. Virpal Singh Chauhan
[(1995) 6 SCC 684] and R.K. Sabharwal v. State of Punjab [(1995) 2 SCC
745] and this Court refused to grant the relief saying:
".....this Court has repeatedly held, the delay disentitles the party to
the discretionary relief under Article 226 or Article 32 of the Constitution. It
is not necessary to reiterate all the catena of precedents in this behalf.
Suffice it to state that the appellants kept sleeping over their rights for long
and elected to wake up when they had the impetus from Virpal Chauhan and
Ajit Singh ratios. But Virpal Chauhan and Sabharwal cases, kept at rest the
promotion already made by that date, and declared them as valid; they were
limited to the question of future promotions given by applying the rule of
reservation to all the persons prior to the date of judgment in Sabharwal
case which required to be examined in the light of the law laid in Sabharwal
case. Thus earlier promotions cannot be reopened. Only those cases arising
after that date would be examined in the light of the law laid down in
Sabharwal case and Virpal Chauhan case and equally Ajit Singh case. If the
candidate has already been further promoted to the higher echelons of
service, his seniority is not open to be reviewed. In A.B.S. Karamchari
Sangh case a Bench of two Judges to which two of us, K. Ramaswamy and
G.B. Pattanaik, JJ. were members, had reiterated the above view and it was
also held that all the prior promotions are not open to judicial review. In
Chander Pal v........"
".........Since the respondents preferred to sleep over their rights and
approached the Central Administrative Tribunal only in 1997, they cannot
get the benefit of the order dated 07.07.1992 of the Tribunal in O.A.
No.1455 of 1991 and will only be entitled to the benefit of the circular dated
13.12.1995 which was in force in 1997."
11. Learned G.A has tried to persuade this Court that the learned
counsel for the petitioners has only placed his reliance on sub-para 22.1
without drawing attention of this court as regards the parameters settled by
the Hon'ble Supreme Court in the subsequent paragraphs of the judgment
rendered in Arvind Kumar Srivastava (supra).
12. To add, Mr. Gautam, learned counsel appearing for the
respondent, District & Sessions Judge, West Tripura Judicial District,
Agartala has, firstly, contended that while determining the suitability of a
candidate in the viva voce test, the members of the Interview Board can
award zero mark and the methodology the members adopted in the process
of undertaking viva voce test cannot be questioned by the Court; secondly,
this Court cannot sit as an Appellate Authority over the decision of the
respondents based on the report of Selection Committee comprising experts
on the subject in issue. Mr. Gautam, learned counsel has pressed into service
the judgment passed by the Hon'ble Supreme Court in Hoshiar Singh Vs.
State of Haryana reported in (1993) Supp 4 SCC 377 to convince the court
that a candidate can secure zero mark in the process of determining one's
suitability. Para 13 and 14 of Hoshiar Singh(supra) reads thus:-
"13. As regards rejection of candidates on the ground that
they had misbehaved at the time of interview, we are unable to
agree with the High Court that the Board could not reject a
candidate on the ground that he had misbehaved at the time of
interview. In the process of selection, the Board is required to
adjudge the suitability of the candidate for appointment on the
post for which selection is being made. The Board is entitled to
take note of the behaviour of the candidate at the time of
interview and if it is found that the behaviour is such as to
render him not suitable for holding the post for which selection
is to be made, the Board would be perfectly justified in
rejecting him for appointment on the post. If the course
suggested by the High Court is adopted, namely, that the Board
may give zero mark to the candidate who misbehaves at the
time of interview, the result would be that a candidate whose
behaviour was such as to render him unfit for appointment to
the post, may have to be selected and recommended for
appointment on the basis of the marks secured by him in the
written test although in view of his behaviour at the time of
interview the Board found that he is not suitable for such
appointment. The suitability of a candidate for appointment has
to be considered on the basis of an overall assessment of his
performance during the process of selection. The conduct and
behaviour of the candidate at the time of interview is a relevant
factor in making such assessment. The absence of any provision
in the Rules prescribing minimum marks for interview does not
mean that the Board is bound to select a candidate who is
found to be unsuitable for appointment by the Board on account
of his behaviour at the time of interview. We do not propose to
go into the question as to whether the candidates who have
been rejected by the Board on the ground of misbehaviour had
misbehaved at the time of interview since the selection is liable
to be quashed for the reasons mentioned"
14. The directions given by the High Court quashing the
selection and appointment of the appellants in these appeals
must, therefore, be upheld and the appeals are liable to be
dismissed."
13. Mr. Dey, learned counsel appearing for the private respondents
in WP(C) 452/2022 has placed a decision passed by a Single Bench of this
Court(Arindam Lodh, J.) in WP(C) 677/2022 titled as Sri Amal Kanti
Ghosh Vs. The State of Tripura and 9 Ors. where this court had dismissed
the similar prayers made by the petitioner.
14. I have given my thoughtful consideration to the submission
advanced by learned counsel appearing for the rival parties, perused the
judgments and the documents annexed with the writ petitions.
15. At the very outset, I am of the considered view that the present
writ petitions are badly barred by the principle of delay and laches. The
advertisement was published in the year 2015. The process was continued
and ultimately, first selection list was published under notification dated
02.05.2017 [Annexure 3 to WP(C) 632/2023]. In the year 2018, some of the
candidates who secured zero mark in the viva voce test had approached this
court praying for a direction to constitute a fresh Interview Board and the
Court allowed them to appear in the viva voce test. Accordingly, Interview
Board was constituted and ultimately those writ petitioners were appointed.
Subsequently, as many as 12 writ petitioners approached this court praying
for similar reliefs and those were also allowed by a Coordinate Bench of this
Court and all of them were selected. As I said earlier, the last selection and
appointment were made in the month of March, 2022. It is apparent that the
present writ petitioners also had secured zero mark. They noticed it when the
first selection list was published under notification dated 02.05.2017(supra).
Thus, the petitioners were well aware of the fact that they secured "zero"
mark in the interview, but the petitioners had kept on maintaining silence for
a long time and suddenly woke up from deep slumber and filed the instant
writ petition in the year 2022 praying for a direction upon the respondents to
conduct fresh oral interview.
15.1 Thereafter, some of the candidates approached this Court on the
basis of RTI application stating inter alia that through RTI application they
came to know that they obtained zero mark in the viva voce test, and prayed
for a direction to conduct their oral interview afresh by a re-constituted
selection board. A Coordinate Bench of this Court had allowed their prayers
and ultimately they got appointed in the post of Group D. Even after that, the
present writ petitioners did not come forward before this court praying for
similar reliefs and they preferred to sleep over their rights, if they had any.
16. I have noticed the reply given by the members of the Interview
Board which has been noted in the case of Jakir Miah(supra) at para 6 of
the judgment, which is reproduced here-under, for convenience, in extenso:-
"[6] Even the respondents No. 3, 4 and 5, the members of the
Interview Board filed their separate reply and contended that
the petitioners' claim that they ought to have given marks is
based on no material. They have asserted that zero mark was
awarded to those candidates who were found not 'suitable' for
the post and mere appearance in the viva-voce test did not give
rise to any right to the petitioner to get any marks of his choice.
Not only the petitioners, but some other candidates were also
given zero marks considering their suitability"
16.1 I am constrained to observe as to whether this Court in exercise
of its discretionary jurisdiction under Article 226 of the Constitution of India
can question the methodology to be adopted by a Selection Committee or the
members of the Interview Board to test the suitability of the candidates in
absence of any allegation of bias against any members of the Interview
Board. According to me, it is absolutely within the domain of the Selection
Committee or the members of the Interview Board. The court can in no way
in exercise of its extraordinary jurisdiction under Article 226 of the
Constitution can step into the shoes of the Selection Committee or the
Interview Board whatever it may be. The members of the Interview Board
i.e. respondents No.3, 4 and 5 in the writ petition had clearly stated in the
case of Jakir Miah(supra) that while determining the suitability of the
candidates they had awarded zero mark as they found the candidates were
not suitable for the post.
17. At this juncture, I may gainfully refer to the parameters laid
down by the Hon'ble Supreme Court in the case of Arvind Kumar
Srivastava (supra) as regards the question of discrimination which are as
under:-
"23) The legal principles which emerge from the reading of
the aforesaid judgments, cited both the appellants as well as the
respondents, can be summed up as under
(1) Normal rule is that when a particular set of employees is
given relief by the Court, all other identically situated
persons need to be treated alike by extending that benefit.
Not doing so would amount to discrimination and would be
violative of Article 14 of the Constitution of India. This
principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this
Court from time to time postulates that all similarly situated
persons should be treated similarly. Therefore, the normal
rule would be that merely because other similarly situated
persons did not approach the Court earlier, they are not to
be treated differently.
(2) However, this principle is subject to well recognized
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the
wrongful action in their cases and acquiesced into the same
and woke up after long delay only because of the reason that
their counterparts who had approached the Court earlier in
time succeeded in their efforts, then such employees cannot
claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would
be treated as fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss their
claim.
(3) However, this exception may not apply in those cases where
the judgment pronounced by the Court was judgment in rem
with intention to give benefit to all similarly situated
persons, whether they approached the Court or not. With
such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly
situated person. Such a situation can occur when the subject
matter of the decision touches upon the policy matters, like
scheme of regularisation and the like (see K.C. Sharma &
Ors. v. Union of India (supra). On the other hand, if the
judgment of the Court was in personam holding that benefit
of the said judgment shall accrue to the parties before the
Court and such an intention is stated expressly in the
judgment or it can be impliedly found out from the tenor and
language of the judgment, those who want to get the benefit
of the said judgment extended to them shall have to satisfy
that their petition does not suffer from either laches and
delays or acquiescence."
18. In the present case, the Coordinate Bench of this Court had
passed further similar directions while allowing the writ petitions filed by
some unsuccessful candidates securing zero mark. After careful perusal of
the earlier judgments passed by this Court as referred to supra, in my
opinion, there is no material to infer that those judgments were passed as
judgment in rem. In my opinion, those judgments were to be treated as
judgments in personam.
19. My above view is further fortified by the observation of the
Coordinate Bench of this Court made in the case of Sri Sukanta Das(supra),
which is as under:-
"27. Before parting with the records, this court would observe
that in view of the decision in Ram Gopal (Supra) as from the
date of the publication of the result of the selection test three
years have elapsed no further action by any person who
appeared in the interview shall not ordinarily be entertained."
19.1 Having observed thus, the Coordinate Bench of this Court had
expressly created a stumbling block in entertaining fresh writ petitions, if
any, by any person/candidates who appeared in the interview under the
advertisement dated 24.04.2015 [Annexure 2 to WP(C) 632/2023] and in
that meanwhile, three years had already been elapsed since the date of the
publication of the result of the selection test. It is apparent that the present
writ petitioners have approached this court after almost 5(five) years as from
the date of the publication of the result of the selection test. The position as
of now has already been settled by the District & Sessions Judge in the
matter of appointment of the candidates who appeared in the selection
process in terms of the advertisement under notification dated 24.04.2015.
20. Having read and considered thus, this Court declares all the
judgments passed by the said Coordinate Bench of this Court on the subject
in issue as judgments in personam and not in rem.
21. In the ultimate analysis, I am of the firm view that the selection
process which was commenced in the year 2015 should not be continued
perennially, and at one stage it must be stopped keeping in mind the
principle of equity. In my opinion, none of the petitioners has any right to
approach this Court praying for a direction to constitute a fresh Interview
Board and to allow them to appear before such Interview Board for their
selection because all of them were found unsuccessful in the first list
published by the respondents. A candidate may secure zero mark if he/she is
unable to answer a single question put forth by the members of the Interview
Board. It is not absurdity at all. There are other factors also. Oral interview
is a mechanism to evaluate/assess a candidate's personal characteristics as
initiative, ingenuity, alertness and ability to elicit cooperation.
22. In my considered view, since the Court does not possess the
necessary equipment to test the suitability of a candidate appearing in any
selection process, it should be left to the wisdom of the experts, and should
not be interfered with unless the selection process suffers from proven vice
of arbitrariness or obvious oblique motive.
I may profitably refer to the decision of Hon'ble Supreme Court
in Lila Dhar Vs. State of Rajasthan & Ors, (1981) 4 SCC 159, where it was
observed as under:-
"5. .......It is now well-recognised that while a written
examination assesses a candidate's knowledge and intellectual
ability, an interview-test is valuable to assess a candidate's
overall intellectual and personal qualities. While a written
examination has certain distinct advantages over the interview-
test there are yet no written tests which can evaluate a
candidate's initiative, 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, intellectual and moral
integrity. Some of these qualities may be evaluated, perhaps
with some degree of error, by an interview-test, much
depending on the constitution of the Interview Board. O. Glenn
Stahl in his Public Personnel Administration points out:
"Any form of written test possesses certain administrative
advantages over the oral and performance types. The written
form is much easier and cheaper to administer. It can be given
to a large number of individuals at the same time, thus
conserving the time of the examiners. As a general rule it is
easier to evaluate objectively, and the technical proficiency
demanded in rating is usually, although not always, less. The
oral test has long served as a basic selection tool in private
employment but has been more slowly accepted in the public
field. This conservatism arises out of three considerations: (1)
the difficulty of developing valid and reliable oral tests; (2) the
difficulty of securing a reviewable record of an oral test; and
(3) public suspicion of the oral as a channel for the exertion of
political influence through the destruction of anonymity.
Despite these acknowledged disadvantages, however, orals
have been used increasingly in public personnel testing and
have become important instruments wherever tests of personal
attributes are considered essential. As we have noted no
satisfactory written tests have yet been devised for measuring
such personal characteristics as initiative, ingenuity and ability
to elicit cooperation, many of which are of prime importance.
When properly employed, the oral test today deserves a place in
the battery used by the technical examiner.... The general
principle is that resort should never be had to an oral if the
relevant factors to be tested can be measured at some other
point in the examining process. The reason is that the reliability
of the oral, even under the best of conditions, tends to be lower
than that of the well designed written test. The oral test should
be confined, then, to the evaluation of relevant traits which
cannot be measured in any other way. [ Ibid., p. 92] "
In the United Nations Handbook on Civil Service Laws and
Practice it is said:
"... the written papers permit an assessment of culture and
intellectual competence. The interview permits an assessment of
qualities of character which written papers ignore; it attempts
to assess the man himself and not his intellectual abilities."
23. That apart, when the Rule stipulates for viva voce test, then,
there must be some purpose the framers wanted to achieve. By now, it is
well settled that interview is the best mode of assessing suitability of a
candidate for a particular position. While the written examination testifies
the candidates' academic knowledge commensurate to the posts, the oral test
alone can bring to light one's overall intellectual and personal qualities
which would reveal whether he is fit for the post. The Selection Committee
always keeps in mind the legislative intendment behind framing of such rule.
So, the decision of the Selection Committee should not be dislodged or
discarded on flimsy grounds.
24. In Lila Dhar (supra), it was observed that:
"The object of any process of selection for entry into a
public service is to secure the best and the most suitable person
for the job, avoiding patronage and favoritism. Selection based
on merit, tested impartially and objectively, is the essential
foundation of any useful and efficient public service..........."
25. I reiterate that the High Court in exercise of its jurisdiction
under Article 226 of the Constitution of India is not expected to sit as Court
of Appeal over the decisions taken by the experts in the Selection
Committee and to scrutinise the relative merit of the candidates unless the
process of assessment/evaluation is vitiated either on the ground of
malafides, bias or arbitrariness. Moreso, in the case on hand, the Selection
Committee was constituted in terms of the relevant rules and there was no
allegation against the constitution of the committee. I may gainfully refer the
decision of the Apex Court in the case of Dalpat Abasaheb Solunke vs. B.S.
Mahajan, (1990) 1 SCC 305. Para 12 of the judgment reads thus:
"12. It will thus appear that apart from the fact that the High
Court has rolled the cases of the two appointees in one, though
their appointments are not assailable on the same grounds, the
court has also found it necessary to sit in appeal over the
decision of the Selection Committee and to embark upon
deciding the relative merits of the candidates. 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 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 the
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."
Again, in Secy. (Health) Deptt. of Health & F.W. vs. Anita
Puri (Dr), (1996) 6 SCC 282, the Apex Court held thus:
"9. ............. It is too well settled that when a selection is made
by an expert body like the 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, the
courts should be slow to interfere with the opinion expressed by
experts unless allegations of mala fide are made and 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 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."
26. Pertinently, in the above batch of writ petitions, I find that none
of the petitioners has levelled any allegation of bias, or malafide against any
Members of the Selection Committee. In such a case, in my opinion, the
court must refrain itself from interfering with such selection process.
27. In the light of above discussions and the reasons thereof, I find
no merit in this bunch of writ petitions, and accordingly, the same stand
dismissed.
JUDGE
SAIKAT Digitally signed
by SAIKAT KAR
KAR Date: 2024.04.05
16:31:10 +05'30'
Rohit
