Arun Kumar Basu and etc. vs West Bengal University of Animal and Fishery Sciences and Others

Tarun Kumar Das, J.—Both the appeals arise out of two separate judgments dated 12.4.2012 passed by a learned single Judge of this Court whereby the writ petitions filed by the appellants were dismissed. We have heard both the appeals analogously since the facts are similar and the questions of law involved are identical in nature.

The thumb nail story which leads to these appeals is that the present appellants offered themselves as candidates from the general category for the post of office attendant (Grade-II) of the respondent University in response to the Advertisement issued by the West Bengal University of Animal and Fishery Sciences, vide Advertisement No. VCS/WBUAFS/R-17/CON-69/3 dated 8th December, 2008.

There is no dispute that the present appellants were found eligible in all respect by the respondent University and also by the West Bengal Council of Technical Education (Respondent 4) which conducted the said test for and on behalf of the respondent University and therefore the appellants were allowed to sit in the written test and was also called at the interview.

It may be mentioned here that under the methodology adopted for the selection, 70 marks were allotted for the written examination, 20 marks for interview/viva voce and 10 marks for academic qualifications and experience.

The appellant/writ petitioners were respectively placed in 4th and 6th positions in the written test, as is appearing from the records prepared on the basis of the performance of the said candidates in the written test. Thereafter the appellants in response to the call letters appeared at the interview. Subsequently, to their utter surprise, the appellant-writ petitioners came to know that their names were not in the final panel in spite of securing high marks in the written test.

It is claimed by the appellants that in order to pick up the favourites, interview was only used as a mechanism. Save and except one candidate none of the appointed candidates secured higher marks on the basis of written test and experience than the appellants herein. Out of the 30 selected candidates 11 were given 18 or more marks and the remaining 2 were given 17.25 and 16.75 marks out of 20 in the interview/viva voce, while the unsuccessful candidates, including the present appellants, were awarded marks between 3 and 4 only.

It may be mentioned here that during hearing of the appeals the learned Senior counsel of the respondent University cited certain reported cases of the Hon''ble Apex Court, reported in Bharat Singh and Others Vs. State of Haryana and Others, Dallu v. State of Haryana and others; Nathu Ram Phal and others v. State of Haryana and others; Shri Ram and others v. State of Haryana and others) D.V. Bakshi and others etc. etc. Vs. Union of India and others, and Vijay Syal and Another Vs. State of Punjab and Others, and submitted that the allegation of favouritism based on plea are not supported by any document far less any dependable proof which in selection matters should not be taken into consideration by the Court.

The learned Senior counsel of the University by citing a decision of the Hon''ble Supreme Court, reported in National Institute of Mental Health and Neuro Sciences Vs. Dr. K. Kalyana Raman and others, submitted that the function of a Selection Committee is neither Judicial nor Adjudicatory and it is purely administrative and there is no rules and regulations which required a Selection Committee to record reasons. Therefore, no question should arise for assigning reasons for awarding marks in the interview in question. Hon''ble Apex Court in para 8 of the above reported case has been pleased to observe:--

As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The ''fairness'' or ''fair procedure'' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration...............

And such observations regarding awarding of marks in the interview and that also without having any guideline fixed or adopted by the University Authority/interviewing body is suggestive of the very fact that the ''fairness'' or ''fair procedure'' in the so called administrative action was not observed at all in the cases in hand and therefore this case is in no way helpful to the respondent University Authority.

Another case cited by the learned Senior counsel for the University Authority reported in Kristachar Gurachar Galgali Vs. Shivangaowda Kenchanagowda, Police patil Dead by L.Rs., contained facts and circumstances which are completely different from the facts and circumstances with the present cases and therefore has got no bearing. The contesting respondents also cited another case of the Hon''ble Apex Court reported in Vijay Syal and Another Vs. State of Punjab and Others,

On the other hand learned Senior counsel for the appellants in both the appeals referred to a case reported in Dr. J.P. Kulshreshtha and Others Vs. Chancellor, Allahabad University and Others, wherein the Hon''ble Apex Court has been pleased to observe, in paragraph (10) as under:--

We may dispel two mystiques before we debate the real issues. Did the selection committee act illegally in resorting to the interview process to pick out the best? We think not. Any administrative or quasi-judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally viable processes of transacting business subject, of course, to the basics of natural justice, fair play in action, reasonableness in collecting decisional materials avoidance of arbitrariness and extraneous considerations and otherwise keeping within the leading strings of the law. We find no flaw the methodology of ''interviews''. Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. Thus, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So, it is that Courts insist, as the learned single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the Court is skeptical, the record of the selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad. Dr. Martin Luther King Jr. was right when he wrote:--

So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or even more, to use moral means to preserve immoral ends.

The learned Senior counsel of the appellants also cited B.S. Minhas Vs. Indian Statistical Institute and Others, wherein the Hon''ble Supreme Court has been pleased to observe:--

.............It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.

The learned counsel also cited another judgment of the Hon''ble Supreme Court reported in Union of India and Others Vs. O. Chakradhar, and in paragraph 8 of the said judgment Hon''ble Court has been pleased to observe as follows:--

In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so wide-spread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance.

It has further been observed by the Hon''ble Apex Court in paragraph (12) of the above cited case,--

...........The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable...........

The position in the written test and academic qualifications of the short-listed candidates are not disputed. The point of dispute is only marks awarded to the short listed candidates in the interview/viva voce test.

It has been specifically alleged by both the appellant-writ petitioners that the interview in question was only a means to pick up the favourite candidates.

At the time of hearing the learned Senior counsel of the respondent University contended that the allegations of the writ petitioner-appellants are false, fabricated, without any basis and are not supported by any document. The said learned Senior counsel of the University also submitted that the interviewing body was not even supplied with the marks obtained by the short-listed candidates in the written test. Said learned counsel of the University Authority further submitted that awarding of high marks and low marks by itself is no ground to allege favouritism.

Conceding but not admitting that the submissions of the learned Senior counsel of the University Authority, as mentioned above, may have substance, but this Court cannot overlook the question of transparency and natural justice. Nothing is appearing from the records submitted by the respondent University that there was a guideline to award marks to the candidates appeared in the interview/viva voce test and following that guideline marks were awarded in the interview/viva voce test. In this respect the learned Senior counsel of the respondent University submitted that in the interview marks were possibly dependent on the quality of a candidate assessing diligence, respectfulness, sobriety and general sense of discipline. There is no room for doubt that the learned counsel made the submissions as per instructions received from the respondent University Authority. If those qualities of a candidate were to be considered in the mark awarding process in an interview or viva voce test, then we think that in order to maintain the transparency those factors should be declared before hand and at least before holding the interview was taken. But that was not the reality in these cases and that is why the learned Senior counsel of the University used the very word.................."Possibly" (Emphasis supplied). It is very doubtful that it was possible for the interviewing body to assess the quality of the candidates upon adjudging diligence, respectfulness, sobriety and general sense of discipline of each one of the candidates appeared before them for a short period of time during the interview and to award marks to each one of them on that basis.

The answer-sheets of the written examination and the academic qualifications of the candidates are matters of record and can be seen and perused if and when required. But without any proper written guidelines when the candidates secured high place (4th and 6th) in the written test are placed in viva voce even behind a candidate placed in 146th position in the written test that creates severe doubt in our mind which the respondents have failed to uproot. The above submissions of the learned Advocate of the respondent in our consideration have got no bearing in the facts and circumstances of the present appeal since no document containing the guidelines of awarding marks to the candidates in the interview/viva voce test was issued/prepared, maintained and produced before the Court in support of such contentions of the learned Advocate.

It appears that the extent and/or magnitude of the factual aspects so far as it relates to the proportion of marks awarded in the written examination and also in oral/viva voce test in respect of the candidates concerned are so different in the case in hand it would not be wise to adopt the principle observed in the case cited by the learned counsel of the University reported in Vijay Syal and Another Vs. State of Punjab and Others, decide the fate of the present cases more particularly when admittedly there was no guidelines/criteria for the interview/viva voce test in question.

The peculiarity of this case is that no record of the oral test/viva voce test containing guidelines for awarding marks and other data''s were maintained either by the University Authority or by the agency conducting the oral or viva voce test, save and except the final list of candidates showing marks obtained by each of them including the marks obtained in interview/viva, leaving no room for the Court so that it may probe into the records of the oral test. Such state of affairs puts the entire episode of oral test/viva in great doubt. In other words it is fishy, unclean and not at all transparent.

Now in view of all the above we are of the opinion that the way and in the manner in which the interview/viva in question was conducted and marks were awarded to the candidates is very much doubtful and is not at all transparent and therefore selection of the candidates made on the basis of the said interview/viva voce is quashed. The judgments and orders under appeals are therefore set aside on the identical grounds.

The University Authority is hereby directed to conduct the interview/viva voce test de novo after fixing a guideline for awarding marks, in such interview within a period of four weeks after communication of this order. Such interview/viva shall remain limited within the short-listed candidates.

With the aforesaid directions, we allow both the appeals and the connected applications.

In the facts of the present case, there will be however no order as to costs. All parties are to act on a signed photocopy of this order on the usual undertakings.

Pranab Kumar Chattopadhyay, J.

I agree.