Ajay Kumar vs State of H.P.

Sureshwar Thakur, J.—In the instant Writ Petition, the writ petitioner prays for the following reliefs:-

"(a). That the writ in the nature of certiorari may kindly be issued to quash the recommendations made vide Annexure P-11 by the respondents No. 3 to 5 while selecting the respondents Nos. 6 and 7 for the post of constables in the category of Scheduled Tribe in Himachal Pradesh Police Department and further to quash their appointments and justice be done.

(b) That the writ in the nature of mandamus may kindly be issued directing the respondents No. 3 to 5 to recommend the name of the petitioner for the post of constable in Himachal Pradesh Police Department and further offer him the appointment by the respondent No. 1 to 4 from the ate the other candidates are being offered the appointment with all consequential benefits such as Seniority, salary etc., and justice be done."

The core of the submission addressed before this Court by the learned counsel appearing for the petitioner is anvilled upon attribution of mala fides to the Board which interviewed the petitioner herein and theirs afflicting the awarding of marks by the Board to the petitioner to be smacking of arbitrariness. The submission attributing mala fides to the Board which conducted the interview of the petitioner herein is comprised in paragraph No. 11 of the writ petition. The essence of the attribution of mala fides imputed therein to the Interviewing Board is comprised in the fact of the Interviewing Board having awarded to candidates, who scored lesser marks than the petitioner in the written test, higher marks vis-�-vis him in the viva voce, besides the Interviewing Board which conducted the viva voce of the petitioner having singled him out or arbitrarily chosen him for awarding him a mere negligible three marks, whereas other aspirants, who scored lesser marks than the petitioner in the written test were awarded higher marks in the viva voce conducted qua them by the Interviewing Board. The said fact is contended by the learned counsel appearing for the petitioner to be disclosing as well as bespeaking in-transparency as well as favouritism hinging upon mala fides having been indulged into by the Interviewing Board with a premeditated mind to oust the petitioner from selection.

Substantiation to the averments comprised in paragraph No. 11 of the petition is lent by the records as has been adduced before this Court for its perusal by the learned Deputy Advocate General. An incisive perusal thereof does, hence, constrain a conclusion that as a matter of fact of the Board which conducted the viva voce of the petitioner having despite his having secured 43 marks in the written test amongst the 197 candidates who participated in the written test of whom 97 were to be selected, awarded to him a mere negligible three marks in the interview, whereas other aspirants, who competed for selection along with the petitioner herein though having scored lesser marks in written test, were awarded higher marks. It appears that, hence, the Board which conducted the viva voce of the petitioner handpicked and arbitrarily chose the petitioner for awarding him the least marks vis-�-vis other aspirants, obviously with an oblique motive fostered by a predetermined mind to oust the petitioner herein from selection. The said singling out of the petitioner for awarding him the least marks vis-�-vis other aspirants, who along with the petitioner competed for selection, especially with the latter having obtained lesser marks in the written test than the petitioner per se smacks of arbitrariness. Besides, it conveys that the Interviewing Board was actuated by mala fides to not award to the petitioner marks higher than the marks awarded to the other aspirants which in case so were awarded to the petitioner herein would have sequeled his selection and consequent appointment. In other words, if he was awarded 3.10 marks, he would have come to be selected and appointed. The non awarding of. 10 (point ten) per centum to the petitioner herein by the interviewing board has de-facilitated his selection or consequent appointment which deficiency of minimal marks for the reasons aforesaid is generated by mala fides.

The factual scenario as encapsulated hereinabove prods an inference that the petitioner herein has been denied his legitimate right to be selected by a predetermined mind of the interviewing board for the reasons aforesaid to oust him from selection. The afore referred inference of the awarding of deficient marks in the viva voce to the petitioner despite his having obtained higher marks than the other candidates or aspirants as also his having been singled out for being awarded negligible marks in the viva voce, though other aspirants, who obtained lesser marks in the written test, were awarded higher marks in the viva voce, as such, theirs constituting mala fides as also lending in transparency to the viva voce conducted by the interviewing board, is mobilized on the strength of the verdict of the Hon''ble Apex Court in Bishnu Biswas and Others Vs. Union of India (UOI) and Others, , the relevant paragraphs whereof are extracted hereinbelow:-

"18. In Jasvinder Singh and Others Vs. State of Jammu & Kashmir and Others, this court upheld the allocation of 20% marks for viva test as against 80 marks for written test for selection to the post of Sub-Inspector of Police. However, the Court cautioned observing that the awarding of higher percentage of marks to those who got lower marks in written test in comparison to some who had got higher marks in written examination, an adverse inference from certain number of such instances can be drawn. However, in absence of any allegation of mala fides against the Selection Committee or any member thereof, a negligible few such instances would not justify the inference that there was a conscious effort to bring some candidates within the selection zone.

in the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while a large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so-called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at lest in respect of age as the advertisement was issued more than six years ago."

Since the officials of the concerned department, who are present in Court, who being on intimated by their superior officers have conveyed to this Court that to undo the wrong done to the petitioner, the respondents herein shall offer appointment or consider him for being appointed to the post of constable in the category of Schedule Tribe as and when a vacancy arises, as such, in face thereof, the present Writ Petition is disposed of with a direction to the respondents-State to consider the petitioner for his being appointed to the post of constable in the category of Schedule Tribe as and when a vacancy arises.

All the pending applications, if any, also stands disposed of.