Smt. Bhawana Chauhan vs State Of Uttarakhand & Others
2021 Latest Caselaw 909 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Writ Petition (S/S) No. 424 of 2021

Smt. Bhawana Chauhan                                           ....... Petitioner

                                       Vs.

State of Uttarakhand & others
                                                             ......Respondents



Present: Mr. Rajesh Joshi, Advocate for the petitioner.
         Ms. Anjali Bhargava, Additional CSC for the State/respondent nos. 1 to 3.


                                  Judgment

Hon'ble Ravindra Maithani, J. (Oral)

Petitioner responded to an advertisement dated

11.11.2020 published for the recruitment of some vacant posts of

Assistant Teacher (L.T. Grade) Art, which was reserved for

Economically Weaker Section candidates. The advertisement was

issued by the respondent no. 3 -Chief Education Officer, District

Udham Singh Nagar. The process for interview was conducted in

accordance with the Uttarakhand School Education Act, 2006 (for

short "the Act") and it's amending Regulation of 2009, which provides

that 100 marks shall be assessed on the basis of academic performance

and 05 marks shall be assessed on the basis of interview.

2. It is the case of the petitioner that having obtained second

highest quality marks, she was eliminated from selection by offering

appointment of another post to the candidate who had secured highest

quality marks and also by awarding excessive marks in the interview

to the respondent no. 6. The petitioner seeks that the appointment

offered to the respondent no. 6 be quashed and fresh merit list be

prepared after conducting interview afresh.

3. Heard learned counsel for the parties and perused the

record.

4. Learned counsel for the petitioner would submit that the

process for recruitment was conducted in accordance with the Act.

Seven candidates were to be called for one post. The basis for

preparing the merit was the academic performance of the candidates.

On the basis of which, the petitioner stood at serial no. 2 in the list of

shortlisted candidates, which is as hereunder (Annexure-5):-

           Sl. No.   Name of the candidate       Total Marks

           1.        .....                         42.44

           2.        Bhawana Chauhan             39.02

                     (Petitioner)

           3.        (Respondent no. 6)          38.92

           4.        .....                         .....

           5.        .....                         .....

           6.        .....                         .....

           7.        .....                         .....

5. It is argued that in order to appoint respondent no. 6, the

candidate at serial no. 1 of the shortlisted list, was offered appointment

as a Lecturer, therefore, she did not appear in the interview. In the

interview, which was conducted by five members, the petitioner was

given less marks so as to eliminate her from the process. The marks

obtained in the interview by each of the candidates are part of record

as Annexure 11, which is as hereunder:-

Sl. No. Name of the Average Marks Total Marks

candidate

1. .... A A

2. Bhawana Chauhan 2.84 69.15

Petitioner

3. Respondent no.6 3.86 69.45

4. .... 3.76 65.30

5. .... 2.7 63.96

6. .... 2.7 61.94

7. .... 2 60.50

6. It is argued on behalf of the petitioner that she has

wrongly been assessed in the interview, therefore, the matter needs

judicial intervention.

7. This is a writ petition under Article 226 of the

Constitution of India. Each and every action cannot be subjected to

judicial review. There are Rules which govern the exercise of judicial

review. The scope of judicial review came up for interpretation in

various cases. In the case of Tata Cellular vs. Union of India, (1994) 6

SCC 651, after discussing the scope of judicial review, the Hon'ble

Supreme Court in paragraph 94 has summed up the principles of

judicial review which is as hereunder:-

"94. The principles deducible from the above are :

(1) The modern trend points to judicial restraint in

administrative action.

(2) The court does not sit as a court of appeal but

merely reviews the manner in which the decision

was made.

(3) The court does not have the expertise to correct

the administrative decision. If a review of the

administrative decision is permitted it will be

substituting its own decision, without the necessary

expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be

open to judicial scrutiny because the invitation to

tender is in the realm of contract. Normally

speaking, the decision to accept the tender or award

the contract is reached by process of negotiations

through several tiers. More often than not, such

decisions are made qualitatively by experts.

(5) The Government must have freedom of contract.

In other words, a fair play in the joints is a necessary

concomitant for an administrative body functioning

in an administrative sphere or quasi-administrative

sphere. However, the decision must not only be

tested by the application of Wednesbury principle of

reasonableness (including its other facts pointed out

above) but must be free from arbitrariness not

affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy

administrative burden on the administration and lead

to increased and unbudgeted expenditure.

Based on these principles we will examine the facts

of this case since they commend to us as the correct

principles.

2. Whether the selection is vitiated by arbitrariness?

8. In the case of Gohil Vishvaraj Hanubhai & others vs.

State of Gujarat & others, (2017) 13 SCC 621, the Hon'ble Supreme

Court quoted from approval the observations made in the case of

Council of Civil Service Unions vs. Minister for the Civil Service,

1985 AC 374, which is as hereunder:

"16. Lord Diplock in his celebrated opinion in Council of Civil Service Unions1 summarised the principles as follows: (AC p. 410 D-H & 411 A-B)

"... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality," the second "irrationality" and the third "procedural impropriety." That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

By "illegality" as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.

By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn2). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person

1. 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)

2. (1948) 1 KB 223 (CA)

who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow3 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. "Irrationality" by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all."

It can be seen from the above extract, Lord Diplock identified three heads under which judicial review is undertaken, i.e., illegality, irrationality and procedural impropriety. He also recognised the possibility of new heads such as "proportionality" being identified in future. He explained the concepts of the three already identified heads. He declared that the head "irrationality" is synonymous with "Wednesbury unreasonableness".

9. In the case of Gohil Vishvaraj Hanubhai (supra), the

Hon'ble Supreme Court also observed "normally while exercising the

power of judicial review, Courts would only examine the decision

making process of the administrative authorities, but not the

decision itself".

3. 1956 AC 14 : (1955) 3 WLR 410 (HL)

10. In the instant case, the total marks, on the basis of which,

merit of selected candidates has been prepared is 105 marks. Out of

these 105 marks, 100 marks were to be assessed on the basis of

academic performance of a candidate. This itself reduces the chances

of subjectivity, arbitrariness or irrationality in the process. Less than

5 % marks were provided for the interview. There is no straightjacket

formula as to in which cases the Court would make an intervention

under judicial review, to examine the process of recruitment. Each case

depends upon its own facts. There might be cases where some

candidates having much lower academic performance is awarded

astronomically highest marks in the interview and some candidate who

has got highest or outstanding marks based, on academic performance,

is awarded desperately low marks in the interview, perhaps if it is

shown that such marks were awarded on some other considerations,

the Court may make an intervention.

11. In the instant case, according to the petitioner herself,

based on her academic performance, she got 39.02 marks and the

selected candidate i.e. respondent no. 6 got 38.92 marks. The

difference of marks is 0.10 only and this is out of 100 marks. The

interview was conducted not by a single individual, but by 5 members

committee, including subject experts. Each of the members has

awarded marks out of five marks. The total marks were added and then

divided by 5. That is how the evaluation in the interview was done.

This process also appears to be much fair to eliminate arbitrariness or

bias etc. In the interview, according to the petitioner, she got aggregate

2.84 marks and the candidate who was selected got 3.86 marks. The

difference is of 1.02 marks only. Apparently, it cannot be said that

there is any arbitrariness, irrationality, irregularity or illegality. The

process for interview was much fair and it was conducted accordingly.

Merely raising allegations without any substance cannot require this

Court to make an intervention. Therefore, under the facts and

circumstances of the case, this Court is of the view that it is not a case

which may require any judicial intervention.

12. Accordingly, the instant petition deserves to be dismissed

at the admission stage itself.

13. The writ petition is dismissed in limine.

(Ravindra Maithani, J.) 16.03.2021 Ankit/