Service law: Selection process – Quashing of – Selection process conducted for appointment of drug inspectors – 64 persons including some appellants selected and appointed as drug inspectors and are serving on the said posts – However, the said selection and appointment challenged alleging discrepancies in the selection procedure – High Court quashed the selection and appointment – Upheld by the Division Bench – On appeal, held: Candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful – Candidates cannot approbate and reprobate at the same time – Simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process – Challenge ought not to have been entertained in light of the principle of waiver and acquiescence – Furthermore, no mala fide or arbitrariness is found in the selection process – Recasting the selection criteria was only with regard to allocation of marks for the respective educational qualification of the candidates – It was with a view to preserve the standards of the selection process – Furthermore, the assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee – In light of the pertinent selection procedure that was followed, the Court is unable to hold that the same was mechanical or casual or suffered from irregularities which were so grave or arbitrary in nature so as to justify quashing the entire selection process –Thus, the High Court not justified in quashing and setting aside the entire selection process, more so when sixty-four candidates including the appellants had been serving on the said post for over a decade – Jammu and Kashmir Subordinate Services Recruitment Rules, 1992 – rr. 9 and 9A. Selection process for public employment – Scope of judicial review – Held: Courts generally avoid interfering in the selection process of public employment, to maintain the autonomy and integrity of the selection process – Process of selection involves a high degree of expertise and discretion – Not appropriate for Courts to substitute their judgment for that of a selection committee – Courts intervene only when there are proven allegations of malfeasance or violations of statutory rules, or inherent arbitrariness.
Words and Phrases: ‘Pharmacology’ and ‘Pharmacy’– Meaning of – Discussed.
Allowing the appeals, the Court
HELD: 1.1 The Courts generally avoid interfering in the selection process of public employment, recognising the importance of maintaining the autonomy and integrity of the selection process. The Courts recognise that the process of selection involves a high degree of expertise and discretion and that it is not appropriate for Courts to substitute their judgment for that of a selection committee. It would be indeed, treading on thin ice if the Court were to venture into reviewing the decision of experts who form a part of a selection board. Thus, it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. Thus, the Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the Committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely, that the candidates who had done their post–graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20; and that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water. [Para 12, 12.1][748-C-D; 750-G-H; 751A-C]
1.2. It is trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Thus, the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence. The only exception to the rule of waiver is the existence of mala fides on the part of the Selection Board. In the instant case, no mala fide or arbitrariness is found in the selection process and therefore the said exception cannot be invoked. [Para 13, 13.2][753-F-H; 754-A-B]
1.3 In the instant case, the entire selection of the appellants was set aside due to the non-availability of individual award rolls, despite, signed approval of the final Select List by the members of the Board. Whether quashing the entire selection process was excessive or justified, would depend on the selection procedure adopted and whether the same is arbitrary or reveals any mala fides on the part of the selection board. [Para 14.4][755-F-G]
1.4. In light of the pertinent selection procedure that was followed, it cannot be held that the same was mechanical or casual or suffered from irregularities which were so grave or arbitrary in nature so as to justify quashing the entire selection process. Further, the requirement of individual rolls being signed and verified by the members of the Selection Board cannot be traced to any statute or rule. Therefore, the Court cannot sustain the finding of the High Court that the entire selection process was vitiated by such irregularity. The High Court was not justified in quashing and setting aside the entire selection process, more so when sixty–four candidates including the appellants had been serving on the said post for over a decade. [Para 14.6][759-H; 760-A-B]
1.5. The expert in the Selection Board, Dr. Samina Farhat, Assistant Professor, Department of Pharmacology, was a doctor by profession with a Post Graduate degree (MD) and Ph.D. in Pharmacology to her credit. Rule 9A of the 1992 Rules provides that the Chairman may if he feels necessary appoint a specialist in the discipline in which appointment is to be made, as a member of the selection board. In the instant case, it was submitted that a person with a qualification in the field of pharmacy would have been better suited on the panel.[Para 15][760-C-E]
1.6. It cannot be held that a doctor by profession with a Post Graduate degree (MD) and Ph.D. in Pharmacology was in any way underqualified or unsuitable for her role on the Selection Board. In fact, a pharmacologist is more appropriate to interview the candidates for the post of drug inspector. Further, it is to be noted that Rule 9 A provides that the Chairman may if he feels necessary appoint a specialist in the discipline in which appointment is to be made, as a member of the selection board. Similarly Rule 9 (iii) provides that the Chairman may, if he feels necessary associate with the Selection Committee expert/specialist in the discipline in which recruitment is to be made. The use of the word ‘may’ would indicate that the Chairman of the Board has discretion in this regard and there is no mandatory requirement to appoint on the selection panel a person having a qualification in pharmacy. To this extent, the findings of the Single Judge and the Division Bench of the High Court are upheld. [Para 15.3][761-E-G]
1.7. The criteria for evaluation of a candidate’s performance in an interview may be diverse and some of it may be subjective. However, having submitted to the interview process with no demur or protest, the same cannot be challenged subsequently simply because the candidate’s personal evaluation of his performance was higher than the marks awarded by the panel. Only 20 out of 100 marks were allocated for interview/viva-voce. The same is only 20% of the total marks which cannot be said to be an excessive proportion out of the total marks. Further Courts cannot sit in judgment over the award of marks by an interview panel. That is best left to the judgment and wisdom of the interview panel. There is no merit in the contention of the writ petitioners regarding the award of marks to the candidates who appeared for viva-voce before the panel. Moreover, the award of 80% of the total marks is on objective criteria depending upon the educational qualification of the individual candidates. [Para 16.2][762-E-F; 763-D-E]
1.8. The criteria was recast vide Corrigendum dated 12th June, 2009, by increasing the weightage accorded to candidates possessing a Degree in pharmacy or pharmaceutical chemistry and advanced qualifications such as post–graduate degrees, Ph.D etc., with a view to incentivise more qualified persons who had applied for the said posts. Recasting the criteria was only with regard to allocation of marks for the respective educational qualification of the candidates. It was with a view to preserve the standards of the selection process and was not motivated by mala fide or oblique motive. Higher the qualification a candidate possessed, higher marks were awarded. In other words, the minimum marks awarded for educational qualification was 65 and could increase to 80 depending on the higher qualifications of the candidates. Therefore, the selection process cannot be interfered on the ground that the award of marks was recast unilaterally. The reallocation of marks based on the educational qualification was in recognition of the higher qualification of the candidates which cannot be termed to be arbitrary. It is a no brainer that any candidate who was aggrieved by the recast of marks would either withdraw his candidature or challenge the Corrigendum dated 12th June, 2009 at a preliminary stage in the selection process. However, the writ petitioners did not do so. Having participated in the selection process without any demur or protest, the writ petitioners cannot challenge the same as being tainted with mala fides, merely because they were unsuccessful. [Para 16.3][763-F-H; 764-A-C]
1.9. One of the directions issued by the Single Judge in the Writ Petitions was to retain the successful candidates but, at the same time, to consider the case of the writ petitioners for appointment in the available posts. But if it was not possible to accommodate the writ petitioners, owing to non-availability of posts, then the entire selection was quashed and set aside and a fresh Selection Committee was to be constituted to conduct fresh interviews of all the candidates who had earlier appeared before it and a fresh Select List was to be prepared. Further, till the said exercise was to be carried out, the selected candidates were to be continued. The Division Bench, however, quashed the Selection List in its entirety and directed and observed that no further appointments could be made against the vacancies that may have occurred subsequent to the appointments already made and that a fresh selection was to be made by re-advertising the posts. Consequently, the selection of drug inspectors was quashed in toto and a direction was issued to complete the exercise afresh within six months and till then, the appointed candidates as drug inspectors were to be continued. The directions issued by both the Single Judge as well as by the Division Bench were not in accordance with law and hence, the said directions have to be quashed. [Para 17][764-D-F]
1.10. The judgment of the Single Judge of the High Court of Jammu and Kashmir at Srinagar, dated 18th December 2015 and the impugned judgment passed by the Division Bench, dated 29th October, 2021, are set aside. Consequently, the judgment of the High Court of Jammu and Kashmir at Jammu dated 6th July, 2017 following the order of the Single Judge of the High Court of Jammu and Kashmir at Srinagar, dated 18th December, 2015, is also set aside. [Para 18][764-G-H; 765-A] Sadananda Halo v. Momtaz Ali Sheikh, (2008) 4 SCC
619 : [2008] 3 SCR 497; Trivedi Himanshu
Ghanshyambhai v. Ahmedabad Municipal Corporation, (2007) 8 SCC 644 : [2007] 10 SCR 1041 – relied on. Reserve Bank of India v. C.L. Toora (2004) 4 SCC 657: [2004] 3 SCR 847; Union of India v. Bikash Kuanar (2006) 8 SCC 192; University of Mysore v.
C.D. Govinda Rao [1964] 4 SCR 575; Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579: [2003] 2 SCR 387; State of Bihar v. P.P. Sharma (1992)
1 Supp SCC 222 : [1991] 2 SCR 1; Ajit Kumar Nag v. Indian Oil Corporation Ltd. (2005) 7 SCC 764 : [2005]
3 Suppl. SCR 314; Union of India v. Ashok Kumar (2005) 8 SCC 760 : [2005] 4 Suppl. SCR 317; National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman (1992) 2 Supp. SCC 481;
B.C. Mylarappa v. Dr. R. Venkatasubbaiah (2008) 14 SCC 306 : [2008] 14 SCR 288; Baidyanath Yadav v. Aditya Narayan Roy (2020) 16 SCC 799 : [2019] 15 SCR 427; Mohd. Mustafa v. Union of India (2022) 1 SCC 294; Madan Lal v. State of J&K (1995) 3 SCC
486 : [1995] 1 SCR 908; Union of India v. Bilash Chand Jain (2009) 16 SCC 601; Anupal Singh v. State of Uttar Pradesh (2020) 2 SCC 173 : [2019] 12 SCR 1071; D. Sarojakumari v. R. Helen Thilakom (2017) 9 SCC
478 : [2017] 9 SCR 512; Sachin Kumar v. Delhi Subordinate Service Selection Board (2021) 4 SCC 631; Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 : [2006] 1 Suppl. SCR 772; Union of India v. Rajesh P.U. (2003) 7 SCC 285 : [2003] 1 Suppl. SCR 883; Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 : [1985] 1 Suppl. SCR 657; Buddhi Nath Chaudhary v. Abahi Kumar (2001) 3 SCC 328 : [2001]
2 SCR 18; Jasvinder Singh v. State of J&K (2003) 2 SCC 132; Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 : [2006] 3 SCR 953; Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan AIR 1990 SC 434; Secy. (Health) Deptt. of Health & F.W. v. Dr. Anita Puri (1996)
6 SCC 282 : [1996] 5 Suppl. SCR 361; M. V. Thimmaiah v. Union Public Service Commission (2008) 2 SCC 119 : [2007] 13 SCR 624; Om Prakash Poplai and Rajesh Kumar Maheshwari v. Delhi Stock Exchange
Association Ltd. (1994) 2 SCC 117 : [1994] 1 SCR 120; Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576; Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC
309 : [2013] 5 SCR 687; Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 : [2016] 8 SCR 815; Kumari
Anamica Mishra v. UP Public Service Commission, Allahabad AIR 1990 SC 461 : [1989] Suppl. SCR 124; Mohinder Sain Garg v. State of Punjab, (1991) 1 SCC
662 : [1990] 3 Suppl. SCR 108; Minor A.
Peeriakaruppan Etc. v. State of Tamil Nadu (1971) 1 SCC 38 : [1971] 2 SCR 430; Miss Nishi Maghu v. State of J & K (1980) 4 SCC 95 : [1980] 3 SCR 1253; Lila Dhar v. State of Rajasthan AIR 1981 SC 1777 : [1982]
1 SCR 320 – referred to.
P. Ramanatha Aiyar’s Advanced Law Lexicon, 6th Edition, Vol. 3; Oxford Concise Medical Dictionary, 7th Edition – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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