Bidyasunder Chatterjee vs Union of India and Others

Ashim Kumar Banerjee, J.—The Steel Authority of India limited wanted to fill up the post of Junior Technician-cum-Operating Trainee in Durgapur Steel Plant. The respondent authority framed the selection procedure as would appear from paragraph 5(g) of the Affidavit-in-Opposition filed by the respondent authority. The said procedure is set out herein below:

The selection procedure for appointment of Jr. TOT in Durgapur Steel Plant (hereinafter refer to as DSP) is as follows :

i) Minimum qualification for induction of Jr. TOT in DSP is Higher Secondary pass.

ii) All sponsored candidates are required to appear in a written examination of 200 marks. The qualifying marks in the said examination for General Caste and Schedule Caste/Schedule Tribe candidates are 50% and 40% respectively. General Caste candidates and Schedule Caste/Tribe candidates who obtain 50% and 40% respectively or more in the written test are called for interview.

iii) Maximum marks in the interview is 75. Qualifying marks for General Caste and Schedule Caste/Tribe candidates are (50)% and 40% respectively.

iv) Marks obtained in the written test as in the interview are added to find out the total marks.

v) Based on the total marks obtained by the candidates a merit list of eligible candidates for different category is prepared separately.

vi) Eligible candidates from the list is then sent for medical examination strictly on merit position.

vii) Candidates who will be found medically fit from the said list are offered appointment as per number of vacancy in seriatim.

viii) No panel is drawn in that regard.

Applications were invited. The writ petitioner applied for the said post. He was asked to sit for written examination along with other candidates. According to the writ petitioner he got 100 marks in written test being 50% of the total mark and as such he became eligible in general category to participate in the viva voce test. In the viva voce test writ petitioner could obtain 36 mark out 75. As the bench mark was fixed at 37.5 he became unsuccessful and as such he could not be considered for appointment. The selection process had been challenged by the petitioner on the ground that the qualifying marks fixed for the written examination was 100. However, it transpired that persons who got lesser marks than 100 in the written examination were also called for viva voce in violation of the recruitment rules. The respondent authority while admitting such fact in their Affidavit-in-Opposition stated that "due to bad result" the qualifying marks for the written test was reduced to 75 for the general candidates to bring good number of candidates within the zone of consideration. According to the respondent only 109 general category candidates could cross the bench mark fixed for the written examination.

Mr. Bratindra Narayan Roy, learned counsel for the petitioner, in support of his contention had relied upon the following decisions :

i) State of U.P. Vs. Rafiquddin and Others, ;

ii) Ashok alias Somanna Gowda and Another Vs. State of Karnataka by its Chief Secretary and Others,

iii) 1991, Vol. I, SCC 662 (Mahinder Saigol vs. State of Punjab & Ors.)

iv) 1985 Vol. IV, SCC 417 (Ashok Kr. Yadav vs. State of Haryana).

v) 2000 Vol. II, Calcutta High Court Notes, page 419 (Dr. Md. Ketab Ali vs. State of West Bengal).

Relying on the aforesaid decisions Mr. Roy submitted that reduction of the bench mark when the selection was on and after the holding of the written examination was contrary to the recruitment rules and as such the entire selection process was bad and illegal and was liable to be quashed and set aside.

Mr. N.C. Bhattacharjee, learned counsel for the respondent, tried to justify the action of the respondent authority by submitting that the writ petitioner was not prejudiced as he was called for the interview being a successful candidate in the written examination. Mr. Bhattacharjee further submitted that this was an administrative action and since there was no malafide or bias alleged in the writ petition this court was not competent to interfere with the selection process. Mr. Bhattacharjee further submitted that there had been a delay for about 2 years on the part of the petitioner in approaching this Hon''ble Court.

In reply Mr. Roy submitted that there had been in fact no delay as would appear from the averments made in the petition. Before filing the Affidavit-in-Opposition the writ petitioner was under the impression that he was selected by the respondent authority and he would be given appointment very soon and assurance was also given by the authority to the said effect as recorded by this Hon''ble Court in its order dated 15th February, 1995 when this Court directed one post to be kept vacant till the disposal of the writ petition.

The short question before me is as to whether the respondent authority was empowered to reduce the bench mark even when the selection process was on and even after the examination was over and the results were published for the written examination.

From the recruitment rules as quoted hereinbefore it would appear that the bench mark for written examination was fixed at 100. That was made known to the candidates. The candidates applied for the said post in accordance with the said recruitment rules. The written test papers were accordingly evaluated and after evaluation 109 candidates could cross the said bench mark. In such event, the said 109 candidates could only be called for viva voce. The same was not done. Hence, the respondent authority had erred in calling the persons who did not cross the bench mark and wrongly gave them appointment. This smacks of malafide. The submission of Mr. Bhattacharjee to the effect that since there was no malafide, biasness alleged in the writ petition the administrative action of the respondent authority in the selection process should not be interfered with, is not tenable. The writ petitioner for first time came to know from the Affidavit in Opposition that the respondent authority called those persons by reducing the bench mark. Hence, there was no opportunity for the petitioner to make allegation of malafide or bias in the writ petition. In any event, since the procedure adopted by the respondent authority itself was wrong, the entire selection process was vitiated and was liable to be quashed and set aside.

In case of Durgacharan Misra Vs. State of Orissa and Others, the selection process was held to be bad by the Apex Court in view of fixing of qualifying marks contrary to rules as per advice of a sitting judge of a High Court. In the said case before the Apex Court the concerned rule provided that a candidate after scoring prescribed qualifying marks in the written examination would be called for viva voce test and after the viva voce test the total marks obtained in the written examination and viva voce test would be the total mark and there was no qualifying marks fixed by the said rule. Hence, the non-consideration of a candidate on the ground that he did not obtain the qualifying marks in the viva voce test fixed as per the advice of a sitting judge of High Court for selection of a Munsif was held to be bad.

Following the said Apex Court judgment I recently held in the case of Rakesh Kumar vs. Union of India (W.P. No. 20647 of 1998) by my judgment dated July 9, 2002 that fixing a qualifying mark by way of a circular was bad as the same was issued contrary to the recruitment rules and that too when the selection process was on. I quashed the selection process in the case of Rakesh Kumar (Supra).

In my view, the entire selection process in the instant case was conducted contrary to the rules as set out in para 5(g) of the Affidavit-in-Opposition. It is not important as to whether the petitioner had suffered any prejudice by the said process or whether the petitioner accepted such process and being unsuccessful approached this court. These are questions which are totally irrelevant when it is found that the entire selection process was vitiated by illegality. The recruitment rules provided for 50% bench mark for the written examination. 109 candidates crossed that bench mark. Hence, the said- 109 candidates could only be called for interview. Having not done so, the selection process had been vitiated by illegality. In the case of District Collector vs. M. Tripurasundari, reported in 1990 Vol. III, SCC 655 the Apex Court quashed the appointment given to a candidate having third class MA Degree when the recruitment notice prescribed for second class MA Degree. The authority justified the appointment by saying that no suitable candidate was found having the requisite qualification and as such the appointment was given to the candidate by lowering the qualification. The Apex court deprecated such practice by observing that it was fraud on public. This could not be restricted to the appointing authority and the appointee only inasmuch as a large section of public had been deprived of for not being invited for the said post having equal qualification.

Basic principle as evolved from the Apex Court decisions is as to whether the recruitment process had been conducted strictly in accordance with the recruitment rules. Any deviation from the rules pertaining to the selection process would render the selection process nugatory.

In the result, the writ petition succeeds. In normal course I would have directed quashing of the entire selection process. However, this was a matter of 1993. The successful candidates by this time had been working for 8/9 years and as such I do not wish to disturb them. In the peculiar circumstances since one post has been kept vacant in terms of the interim order passed by this Court the respondent authority is directed to absorb the petitioner in the said post.

The writ petition is disposed of accordingly. There would be no order as to costs.

Urgent xerox certified copy will be given to the parties, if applied for.