Ramjit Singh Kardam & Ors. vs Sanjeev Kumar & Ors.

Service Law: Haryana Staff Selection Commission – Multimember body – Decisions taken by the Chairman – Binding effect – Held: The statutory notifications when entrust the Commission to devise the mode of selection and fix the criteria and the Commission being multi-member body, Chairman alone was not competent to alter the mode of selection and the criteria, which was fixed and published for conducting the selection for the post of PTI – The Commission being a multi-member body, all decisions pertaining to mode of selection and criteria was to be taken by the Commission itself, there being no rules or resolution delegating the said power to Chairman or any other member – The decision of not holding written examination, decision to screen on the basis of eight times of vacancies and percentage of marks and decision to call all eligible candidates, were all decisions taken by the Chairman himself, which decisions cannot be said to be decisions of the Commission. Service Law – Selection process – Posts of PTI – Staff Selection Commission, a multi-member body – Decision of Chairman of the Commission to change selection process i.e. not to hold the written examination due to “administrative reasons” – As per the advertisement for the selection of posts of PTI, the Commission had published the criteria for selection on 28.12.2006 which was implemented also– The decision for not holding the written examination and steps taken consequent thereto were all arbitrary decisions, unsustainable in law – Power to device the mode of selection and fix the criteria for selection was entrusted on the Commission to further the object of selection on merit to fill up post in State in consonance with the provisions of Arts.14 and 16 of the Constitution of India – The Commission being recruiting body abdicated its obligation of screening out the best candidates – When the alteration of criteria has been made, which has obviously affected the merit selection, the allegations which have been made in the writ petition against the Commission in conducting the selection are allegations of malice-in-law and not malice-in-fact– The observation of the High Court that “it cannot be a mere coincidence that 90% of the meritorious candidates in academics performed so poorly in viva voce that they could not secure even

10 marks out of the 30 marks or that the brilliance got configurated only in the average candidates possessing bare eligibility” where inferences drawn from result sheet re-affirmed the allegations of malice-in-law.

Service law: Selection process – High Court’s direction to quash the selection made by the Selection Commission and to hold fresh selection – Held: In the instant case, the directions ought to have been issued to complete the process from the stage of holding the written test – All the candidates who had applied for the post of PTI including those selected, ought to have been permitted to take the written test –There was no requirement of fresh advertisement and inviting fresh applications –All the applicants who applied in response to advertisement had right to participate in selection as per criterion notified on 28.12.2006 –Thus, High Court’s direction to quash the selection made by the Selection Commission and to hold fresh selection is modified – The Commission shall conclude the entire process initiated by the advertisement as per criterion notified on 28.12.2006 – All the applicants who had submitted applications in response to the advertisement including those who were selected shall be permitted to participate in the fresh selection.

Words and Phrases: Expression “malice in fact” and “malice in law” are two well-known concepts in law – The malice in law has been dealt as “something done without lawful excuse” – The malice in law is also malafide exercise of power, exercise of statutory power for purposes foreign to those for which it is in law intended.

Disposing of the appeals, the Court

HELD: 1. By notification dated 28.07.1998, the Commission was empowered to devise the mode of selection and fix the criteria for selection of post for which requisition is sent to it by a Department or an office, as it may deem appropriate. As per notification dated 21.06.2007, the Commission shall consist of nine members including the Chairman. The selection on various posts was to be conducted as per the criteria fixed by the Commission. There are no separate statutory rules providing for criteria for recruitment for different posts including the post of PTI. [Paras 33, 34][1121-C-D][1122-A-B]

2.1 The preposition that a candidate, who participates in a selection without a demur taking a calculated chance to get selected cannot turn around and challenge the criteria of selection and the constitution of the selection committee is well settled. In the instant case, both appellants and the respondents had submitted applications in pursuance of advertisement dated 28.07.2006 which provided that the Commission may shortlist the candidates for interview by holding a written examination or on the basis of a rational criteria to be adopted by the Commission. The Commission on 28.12.2006 published the criteria for calling the candidates for interview. Notice dated 28.12.2006 provided that written examination shall be held for post of PTI on 21.01.2007, on 100 objective type multiple choice questions, each question carrying two marks. The notification also prescribed the minimum qualifying marks- 50% for General category, SC BC and ESM 45% and 25% marks was assigned to the viva voce. The above criteria was implemented and written examination was conducted on 21.01.2007, which examination was cancelled citing complaints regarding malpractices in the written examination. Further notice dated 11.06.2008 was published fixing 20.07.2008 for written examination as per criteria earlier notified. Before the above examination could take place, by another public notice, it was cancelled. Another public notice dated 11.07.2008 was published where Commission decided to shortlist eight times the candidates of the advertised post with minimum weightage secured in each category. The said shortlisting was also given up by notice dated 31.07.2009 when it was decided to call all eligible candidates for interview. Commission did not publish any criteria or marks on the basis of which interview was to be held. The criteria, which was published by the Commission on 28.12.2006, 11.06.2008 and 11.07.2008 were given up step by step and no criteria was published for interview. When Commission had not published any criteria on the basis of which candidates were going to be subjected for selection process and the candidates participated in the selection without knowing the criteria of selection, they cannot be shut out from challenging the process of selection when ultimately they came to know that Commission step by step has diluted the merit in selection. Further when the written examination as notified earlier was scrapped and every eligible candidate was called for interview giving a go bye to a fair and reasonable process for shortlisting the candidates for interview, that too only by Chairman of the Commission whereas decision regarding criteria of selection has to be taken by Commission, the candidates have every right to challenge the entire selection process so conducted. [Paras 37, 39][1122-F][1124-A-D]

Madan Lal and Others v. State of J&K and Others (1995) 3 SCC 486 : [1995] 1 SCR 908; K.A. Nagamani v. Indian Airlines and Others (2009) 5 SCC 515 : [2009]

5 SCR 89; Manish Kumar Shahi v. State of Bihar and Others (2010) 12 SCC 576; Madras Institute of Development Studies and Another v. K.

Sivasubramaniyan and Others (2016) 1 SCC 454 : [2015] 14 SCR 276; Ashok Kumar and Another v. State of Bihar and Others (2017) 4 SCC 357 : [2016] 8 SCR 815; Raj Kumar and Others v. Shakti Raj and Others (1997) 9 SCC 527 : [1997] 1 SCR 1159; Bishnu Biswas and Others v. Union of India and Others (2014) 5 SCC

774 : [2014] 4 SCR 625 – referred to.

2.2 The Division Bench of the High Court is right in its conclusion that the selection criteria, which saw the light of the day along with declaration of the selection result could be assailed by the unsuccessful candidates only after it was published. Similarly, selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result, hence, the writ petitioners cannot be estopped from challenging the selection. The writ petitions could not have been thrown on the ground of estoppel. [Para 41][1126-B-C]

Lila Dhar v. State of Rajasthan and Others (1981) 4 SCC 159 : [1982] 1 SCR 320; Ashok Kumar Yadav and others v. State of Haryana and Others (1985) 4 SCC 417 : [1985] 1 Suppl. SCR 657 – referred to.

3.1 On 30.06.2008, a type note by the Superintendent (Recruitment-I) was prepared mentioning that the Chairman had ordered that written test for the posts of DPE, Art and Craft Teacher and PTI, Education Department, Haryana, scheduled to take place, may be “cancelled on administrative reasons”. The said note was approved by the Chairman and he also approved the notice to be published for cancellation of the proposed written examination. Neither the note nor the order of Chairman approving the note give any indication of “administrative reasons” for cancellation of the examination. Another important change which was effected in the criteria for selection was the notification with the approval of note dated 10.07.2008 which mentioned that the worthy Chairman had issued oral direction that in respect of the advertisement, candidates are required to be short-listed eight times of the vacancy and called for interview. Short-listing was to be done on the percentage of the marks of the candidates with minimum percentage mentioned therein. The above criteria was also given up when another note dated 31.07.2008 was approved by the Chairman where the Chairman decided that all the eligible candidates be called for interview changing the earlier criteria. The sequence of events indicates that in accordance with the “special instruction”, the Commission decided the criteria for calling the candidates for the selection as holding of written examination of 200 marks and interview for 25 marks which was the perfect criteria looking to the number of the candidates i.e. 20,836 who had applied in pursuance of the advertisement for the post of PTI. The criteria was implemented by holding a written test which was cancelled due to some complaints. The written test was again notified which was withdrawn, the earlier criterion was given a go bye by another notification. This indicates that the standard on which candidates are to be screened for selection was downgraded by Chairman of his own. When the number of candidates who applied against certain posts are enormously large, short-listing has always been treated as an accepted mode to correctly value the work and merit of the

[Paras 44, 45][1129-B-H]

candidate.

3.2 As per the notification, it is the Commission, who “shall devise the mode of selection and fix the criteria for selection.” The said power has to be exercised in a reasonable and fair manner to advance the purpose and object of selection. Even if assuming that the criteria can be changed by selecting body from time to time,the said change cannot be affected arbitrarily. The present is a case where change in criteria has been affected and altered arbitrarily with the object of down-grading and not up-grading the standards of selection. [Paras 46, 48][1130-E][1131-D-E] Tamil Nadu Computer Science BED Graduate Teachers Welfare Society(1) v. Higher Secondary School Computer Teachers Association and Others (2009) 14 SCC 517 : [2009] 10 SCR 522 – followed.

Tej Prakash Pathak and Others v. Rajasthan High Court and Others (2013) 4 SCC 540 – referred to.

3.3 The notifications issued under proviso to Article 309 of the Constitution of India specifically provides that the Commission shall devise the mode of selection and fix the criteria for selection of posts. The Commission is a multi-member body, which acts collectively. The Commission in the counter affidavits filed before High Court or this Court has not brought any rules or resolution of the Commission by which power of the Commission to devise the mode of selection and fix the criteria have been delegated to any other member including the Chairman. When there are no statutory rules regarding allocation of business of the Commission or delegating its business to members or Committee, the Commission could very well by its resolution devise its own mode of exercising such power or function. [Paras 49, 50][1131-F-H][1132-B]

Naraindas Indurkhya v. The State of Madhya Pradesh and Others (1974) 4 SCC 788 : [1974] 3 SCR 624 – referred to.

Principles of Administrative Law : M.P. Jain & S.N. Jain, 6th Edition, writes in Chapter LXXII – referred to.

3.4 The Division Bench of the High Court after pursuing the original records, which was summoned by it from the Commission has returned a finding that the decision of the Commission dated 30.06.2008, 11.07.2008 as well as 31.07.2008 were all taken by the Chairman alone, which was proved from original records containing the relevant notes and approval by the Chairman. The alteration of criteria, thus, was sole handiwork of the Chairman, which decision was not the decision of the Commission. The criteria for conducting selection for the post of PTI as was published on 28.12.2006 was altered by the Chairman step by step completely giving a go bye to the method of merit selection. The decision of Chairman of the Commission dated 30.06.2008 not to hold the written examination was claimed to have been taken due to “administrative reasons”, but what were “administrative reasons” were never disclosed or brought on record by the Commission. The decision to change the selection process as notified on 28.06.2006 was a major decision not only affecting the applicants who had to participate in the selection on the basis of criteria as notified on 28.12.2006 but had adverse effect on merit selection as devised for 1983 posts of PTI. [Paras 51, 54][1132-E-G][11345-C-E]

4. The Commission being recruiting body abdicated its obligation of screening out the best candidates; The competitive examination, are means by which equality of opportunity is to be united with efficiency. By the said method, favouritism was to be excluded and the goal of securing the best man for the job was to be achieved. Estopping the petitioners from challenging the change of criteria will be giving seal to arbitrary changes affected by Chairman. [Paras 55, 57][1134-G-H][1135-A]

5. The Commission being a multi-member body, all decisions pertaining to mode of selection and criteria was to be taken by the Commission itself, there being no rules or resolution delegating the said power to Chairman or any other member. The decision of not holding written examination dated 30.06.2008, decision to screen on the basis of eight times of vacancies and percentage of marks dated 11.07.2008 and decision dated 31.07.2008 to call all eligible candidates, were all decisions taken by the Chairman himself, which decisions cannot be said to be decisions of the Commission. The decision dated 03.08.2008 was never taken on 03.08.2008 as claimed and the said resolution was prepared subsequent to declaration of the result when the Single Judge asked for criteria of the selection, which was produced in a separate loose sheet signed by all members. [Para 58][1135-G-H; 1136-B]

Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and Others (2013) 1 SCC 524 : [2012]

9 SCR 690 – referred to.

6.1 The present is not a case of malice in fact. The “malice in fact” and “malice in law” are two well-known concepts in law. The malice in law has been dealt as “something done without lawful excuse”. The malice in law is also mala fide exercise of power, exercise of statutory power for purposes foreign to those for which it is in law intended. In the present case, the power to device the mode of selection and fix the criteria for selection was entrusted on the Commission to further the object of selection on merit to fill up post in State in consonance with the provisions of Articles 14 and 16 of the Constitution of India. When the alteration of criteria has been made, which has obviously affected the merit selection, the allegations which have been made in the writ petition against the Commission in conducting the selection are allegations of malice-in-law and not malice-in-fact. [Paras 61, 62][1138-F; 1140-E-G]

6.2 The High Court had summoned the original records of the Commission including the marks awarded to the candidates both on basic qualification as well as essential qualification as well as viva voce. The observation of the High Court that “it cannot be a mere co-incidence that 90% of the meritorious candidates in academics performed so poorly in viva voce that they could not secure even 10 marks out of the 30 marks or that the brilliance got configurated only in the average candidates possessing bare eligibility” where inferences drawn from result sheet and re-affirms the allegations of malice-in-law. The inferences drawn by the High Court, thus, cannot be said to be unfounded nor are based on no material or perverse so as to call for any interference by this Court in these appeals. There is no substance in the submission that since no specific allegations against Chairman and members have been made and they being not impleaded as the parties, the allegations in the writ petition regarding allocation of marks in viva voce cannot be looked into by the High Court. [Para 63][1140-H; 1141-A-C]

State of Haryana and Another v. Sandeep Singh and Others (2019) 6 SCC 453 : [2019] 7 SCR 181 –

referred to.

7. When the selection for 1983 posts of PTI was set aside and the High Court directed to hold a fresh selection, the selection process was to be continued and completed under the orders of the High Court. However, selection initiated by advertisement has to proceed further from the stage the criterion was arbitrarily changed by the Chairman. The completion of selection has to be only from amongst the candidates who had applied against post of PTI, including those who were selected. All the candidates who had applied for the post of PTI including those selected, ought to be permitted to take the written test. In the facts of the present case, there was no requirement of fresh advertisement and inviting fresh applications. In the event fresh applications are called, large number of applicants who participated in the selection would have become over age. All the applicants who had applied in response to advertisement had right to participate in selection as per criterion notified on 28.12.2006. The direction of Single Judge is modified to the above effect. The Commission shall conclude the entire selection process initiated by the advertisement No.6 of 2006 as per criterion notified on 28.12.2006 i.e. holding objective type written test of 200 marks and viva voce of 25 marks. All the applicants who had submitted applications in response to the above advertisement including those who were selected shall be permitted to participate in the fresh selection as directed. [Paras 72, 73, 75][1145-D-F; 1145H; 1146-A-B; 1146-G-H; 1147-A]

C. Channabasavaih Etc. Etc. v. State of Mysore and Others AIR 1965 SC 1293 : [1965] SCR 360 – referred to.