Selection dated 10.04.2010 selecting appellants on the post of Physical Training Instructor (PTI) was set aside ! - Apex court considered the equities and modified the orders

Selection dated 10.04.2010 selecting appellants on the post of Physical Training Instructor (PTI) was set aside !  - Apex court considered the equities and modified the orders


When the continuance of a person on a post is by virtue of an interim order, the continuance is always
subject to outcome of the litigation. The displacement of appellants from their posts is
inevitable consequence of upholding of the judgment of the High Court. 
A Constitution Bench of this
Court in C. Channabasavaih Etc. Etc. Vs. State of Mysore and Others, AIR 1965 SC 1293 has made
following observations in paragraph 9 in such a situation, which is beneficial to record, is as
follows:-
“9. It is very unfortunate that these
persons should be uprooted after they had
been appointed but if equality and equal
protection before the law have any meaning
and if our public institutions are to
inspire that confidence which is expected
of them we would be failing in our duty if
we did not, even at the cost of
considerable inconvenience to Government
and the selected candidates do the right
thing………………………...”
75. In view of the foregoing discussions and conclusions, we dispose of these appeals with the
following directions:
(i) 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.
(ii) The candidates who have been selected and
have worked on the post of PTI shall not be
asked to refund any of the salary and other
benefits received by them as against their
working on the posts. No refund shall also be
asked from those candidates who after their
selection worked and retired from service.
(iii) The entire process be completed by the
Commission within a period of five months
from the date Commission starts working after
the present lockdown is over, which was the
time fixed by the learned Single Judge for
completing the process.
(iv) The costs imposed by the Division Bench in
paragraph 54 of the judgment of the High
Court are deleted except the costs imposed on
the Commission.
76. We, thus, while upholding the judgments of the
High Court, subject to the modifications as above,
dispose of these appeals.


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2103 OF 2020
(Arising out of SLP(C) No. 35373 of 2013)
RAMJIT SINGH KARDAM & ORS. ...APPELLANT(S)
VERSUS
SANJEEV KUMAR & ORS. ...RESPONDENT(S)
WITH
Civil Appeal No.2104 of 2020[@ SLP(C)No.35471/2013],
Civil Appeal No.2105 of 2020[@ SLP(C)No.35466/2013],
Civil Appeal No.2107 of 2020[@ SLP(C)No.35857/2013],
Civil Appeal No.2106 of 2020[@SLP(C)No.35811/2013],
Civil Appeal No.2108 of 2020[@ SLP(C)No.39466/2013],
Civil Appeal Nos.2164-2166 of 2020
[@SLP(C)Nos.5275-5277/2014],
Civil Appeal Nos.2168-2169 of 2020
[@SLP(C)Nos.12403-12404/2014], and
Civil Appeal No.2167 of 2020[@ SLP(C)No.10647/2014].
J U D G M E N T
ASHOK BHUSHAN,J.
1. These appeals have been filed against the common
judgment dated 30.09.2013 of High Court of Punjab and
2
Haryana dismissing LPA filed by the appellants
affirming the judgment of learned Single Judge dated
11.09.2012 by which the Selection dated 10.04.2010
selecting appellants on the post of Physical Training
Instructor (PTI) was set aside. All the appeals
having been filed against the common judgment
involving common facts and questions of law, for
deciding the batch of appeals, it shall be sufficient
to refer pleadings in Civil Appeal No.2103/2020,
Ramjit Singh Kardam and others versus Sanjeev Kumar
and others.
2. The brief facts necessary to be noted for
deciding these appeals are: -
2.1. The Haryana Staff Selection Commission
(hereinafter referred to as Commission)
vide Advertisement No.6 of 2006 dated
20.07.2006 invited applications for various
posts enumerated in different category
numbers in the Advertisement. Under
category No.23, 1,983 posts of PTI
(Physical Training Instructor) were
3
advertised. The Advertisement mentioned the
educational qualifications for the post.
Advertisement contained a special
instruction in following words: -
“SPECIAL INSTRUCTIONS:
The prescribed essential
qualification does not entitle
a candidate to be called for
interview. The Commission may
short list the candidates for
interview by holding a written
examination or on the basis of
a rational criteria to be
adopted by the Commission. The
decision of the Commission in
all matters relating to
acceptance or rejection of an
application,
eligibility/suitability of the
candidates, mode of and
criteria for selection etc.
will be final and binding on
the candidates. No inquiry or
correspondence will be
entertained in this regard.”
2.2. In pursuance of advertisement for the posts
of PTI, 20,836 applications were received
by the Commission. The notification dated
28.12.2006 was published by the Commission
to the effect that the Commission has
decided to hold the written examination on
4
21.01.2007. Notification further mentioned
there shall be 100 objective type Multiple
Choice Questions, 60 Questions relating to
Academic Knowledge of the respective
subject for which a candidate is appearing
in the test and 40 Questions related to
General Knowledge, General English and
Hindi upto Matric Standard. Each question
was to carry two marks. The candidates were
required to secure minimum qualifying marks
in written test i.e. 50% for General
Category and 45% for SC/BC. Notification
further mentioned that Viva-voice will be
of 25 marks. The notification further
provided that candidates equal to three
times of the vacancies will be called for
interview based on their performance in the
written test. The written examination was
held on 21.02.2007.
2.3. A public notice was issued on 01.02.2007 by
the Commission that due to several
5
complaints/reports with regard to
malpractices and cheating committed in
written examination held on 21.01.2007,
Commission has decided to cancel the
aforesaid examination.
2.4. Another notice dated 11.06.2008 was issued
by the Commission re-notifying the written
examination for the PTI on 20.07.2008.
However, before the written examination
could take place on 20.07.2008, another
notice dated 30.06.2008 was issued by the
Commission cancelling the written
examination to be held on 20.07.2008.
Another notice dated 11.07.2008 was
published by the Commission to shortlist
the candidates for interview. The notice
mentioned that keeping in view the large
number of applications, Commission has
decided to shortlist eight times candidates
of the advertised post in the respective
category for interview on the basis of
6
essential academic advertised
qualification. Notice also mentioned the
minimum weighted score of each category.
2.5. On 18.07.2008, the interview schedule was
published by the Commission which provided
that Interview was notified from 02.09.2008
to 17.10.2008. 15,582 candidates appeared
in the interview. One member of the
Commission and one expert member headed
each Interview Committee from A to H.
Although the interview was completed in the
year 2008 itself, the Commission could
declare the result of the selection after
one and half years only on 10.04.2010 which
was published on 11.04.2010. At the end of
the result as published in the newspaper,
criteria adopted for selection was also
mentioned to the following effect: -
“CRITERIA ADOPTED FOR
SELECTION:
The criteria adopted by the
Commission for making selection
is given below: -
7
1) Academic marks…………60 Marks
2)Marks obtained in the Viva
voice out of …………………………30
Marks
Total: 90- Marks”
3. Challenging the Select list dated 10.04.2010,
large number of writ petitions were filed in the
Punjab and Haryana High Court including CWP No.15656
of 2010, Sanjeev Kumar and others versus State of
Haryana and others. The writ petitioners before
filing writ petitions had obtained information under
Right to Information Act details of which information
were mentioned in the writ petition. Various grounds
were taken in the writ petition to challenge the
selection. The writ petitioners pleaded in the writ
petition that some of the candidates have been
awarded more than 25 marks in viva-voice. Further,
some of the candidates have been selected and
appointed who did not possess the requisite
qualification of certificate in Physical Education
conducted by Haryana Education Department or an
equivalent qualification recognized by Haryana
Education Department. The petitioners further pleaded
8
that once the criteria was laid down by the
Commission, the same was required to be followed
strictly while making the selection and it was not
proper to change the criteria. The petitioners
pleaded that criteria has been changed by the
respondent authority to get the desired result and in
order to bring the candidates within the zone of
selection in order to grant them undue benefits for
the reasons best known to the respondent authorities.
4. The Petitioner No.1 of CWP No.15656 of 2010
pleaded that out of 62 Candidates who have been
appointed in district Yamuna Nagar, 61 are less
meritorious as compared to petitioner No.1. The
petitioner No.1 although secured 41.68 marks in
academic qualifications but could get only 8 marks in
the interview. Petitioner further pleaded that all
other petitioners secured good marks in academic
qualifications but they received less marks in vivavoice due to which they could not be included in the
Select list.
9
5. On an application given under RTI asking for a
copy of the criteria, it was only on 17.06.2010 the
criteria was supplied. The writ petitioners further
pleaded that authorities while making selection
neither adopted any rationale criteria nor selected
the candidates on the basis of merit. The criteria
was changed from time to time in order to select some
favourites. Entire selection appears to be a fraud
played upon the general public. 25 marks were
mentioned for viva-voice but when the result was
finalized the candidates were awarded marks more than
25 marks. Paragraph 51 of the W.P.No.15656 of 2010
enumerated the main points involved in the writ
petition.
“51. That the main law points involved in
the writ petition are: -
i) Whether the respondent –
authorities have adopted pick
and choose policy while
selecting the private
respondents?
ii) Whether the marks allocated for
the interview as per the
advertisement could be changed
subsequently after the
commencement of the selection
procedure at the whims of the
respondent authorities?
10
iii) Whether any rational criteria
was adopted by the respondent –
authorities while awarding the
marks for the viva-voce?
iv) Whether the marks for the vivavoice were required to be
bifurcated under various heads?
v) Whether the persons who did not
possess even the requisite
educational qualification could
be selected for the post?
vi) Whether the selection conducted
by the respondent – authorities
is fair transparent and
sustainable in the eyes of law?
vii) Whether while making the
selection Articles 14 and 16 of
the Constitution of India have
been violated?
viii)Whether the action of the
respondent-authorities is
arbitrary, discriminatory and
unsustainable in the eyes of
law?
ix) Whether the petitioners should
be allowed to suffer for no
fault on their part especially
when the petitioners possess
better academic record as
compared to the selected
candidates?”
11
6. In the writ petition No.15656 of 2010, following
prayers were made:-
“
i. relevant records of the case be
summoned;
ii. to issue a writ in the nature of
Certiorari quashing the selection
list Annexure P-9 dated 10.04.2010
and to issue a writ in the nature of
Mandamus directing the respondent
authorities to select and appoint
the petitioners as PTI’s and it is
further prayed that during the
pendency of the writ petition the
respondents may kindly be restrained
from appointing the selected
candidates to the posts of PTI’s.
iii. To issue any other appropriate writ,
order or direction as this Hon’ble
Court may deem fir and proper in the
facts and circumstances of the
present case;
iv. To dispense with from filing the
certified copies of the Annexures;
v. Prior notices to the respondents may
kindly be dispensed with;
vi. To allow the petitioners to file
photostat copies of the Annexures;
vii. Costs of the writ petition be
awarded in favour of the petitioners
and against the respondents,
12
Any other order which this Hon’ble
Court may deem fir may kindly be
passed.”
7. The selected candidates were also subsequently
impleaded as parties in most of the writ petitions
and repeated efforts were made to serve them.
Hundreds of selected candidates were duly served.
Written statements were also filed by selected
candidates in the writ petitions. The High Court
noticed that several respondents have not been served
due to various reasons. Rest of candidates were
served through substituted service for which public
notice was published in the daily “The Tribune” on
21.03.2012.
8. A counter affidavit was also filed by the
Commission opposing the writ petition. Learned Single
Judge had also called for the original record from
the Commission which were produced by the Commission
before the Court.
13
9. Learned Single Judge after hearing the counsel
for the parties and after perusing the record allowed
all the writ petitions by judgment and order dated
11.09.2012. Operative portion of the judgment of the
learned Single Judge is as follows: -
“...These writ petitions are thus
allowed. The purported selection made by
the Haryana Staff Selection Commission in
pursuance to the advertisement No.6/2006,
result whereof was published on 11.04.2010
relating to category No.23 for the posts
of PTIs, is hereby quashed. A direction is
issued to the Haryana Staff Selection
Commission to hold a fresh selection, in
accordance with law, within a period of
five months from the date of receipt of
certified copy of this order.
Photocopies of the original noting
files produced in Court as also the
purported criteria laid down by the
Commission dated 03.08.2008 have been got
prepared, kept in a sealed cover and
placed on the records of CWP No.15656 of
2010 to be opened only on Court orders.
Produced original records be handed over
to Mr. Harish Rathee, learned Senior
Deputy Advocate General, Haryana.
(AUGUSTINE GEORGE MASH)
JUDGE
11.09.2012”
10. LPA No.1594 of 2012 and several other LPAs were
filed before the Division Bench challenging the
14
judgment dated 11.09.2012. Apart from LPAs filed by
selected candidates, few of the LPAs were also filed
by some of the writ petitioners they being partly
dissatisfied by the order of the Single Judge as the
issue of ineligibility and disqualification of
selected candidates expressly raised by them have not
been gone into by learned Single Judge.
11. The State of Haryana as well as Haryana Staff
Selection Commission had also filed LPA challenging
the judgment of the learned Single Judge. All the
LPAs were heard and decided by the Division Bench
vide its judgment dated 30.09.2013. The Division
Bench upheld the order of learned Single Judge.
Operative portion of the judgment of the Division
Bench dated 30.09.2013 is as follows: -
“54) For the reasons afore-stated, we
uphold the decision of the learned Single
Judge and consequently: -
i) LPA Nos. 1841 and 1903 of 2012
filed by the Haryana Staff
Selection Commission are
dismissed with cost of
Rs.50,000/- each to be
deposited with the High Court
15
Legal Services Committee
within a period of one month;
ii) LPA No.1562, 1831 to 1839,
1842 to 1855, 1879 to 1902,
1904 to 1917, 1997, 2002, 2028
of 2012; 248 & 262 of 2013
jointly filed by the State of
Haryana and the Haryana Staff
Selection Commission are
dismissed with cost of Rs.
10,000/-in each case to be
deposited with the High Court
Legal Services Committee
within one month;
iii) LPA Nos. 1555,1557,1592,1594,
1856 to 1860, 1870 to 1878,
1918 to 1920, 1950 of 2012;
529 of 2013 filed by the
selected candidates are
dismissed with cost of
Rs.10,000/- each to be
deposited in the High Court
Lawyer Welfare Fund within one
month;
iv) LPA Nos. 1595, 1760,1967,2194
of 2012; and 303 of 2013 filed
by the writ petitioners are
disposed of in the light of
the observations made in para53 of this Court;
55) Photostat copies of the four files
containing original notings and decisions
taken by the Commission or its Chairman
from time to time, the decision dated
03.08.2008 have been retained and shall be
kept as a part of the judicial record. The
original record be returned to the
Commission under receipt.
56) Ordered accordingly. Dasti.”
16
12. These appeals have been filed by the selected
candidates whose selection had been set aside by
learned Single Judge and affirmed by the Division
Bench. The State of Haryana as well as Haryana Staff
Selection Commission had also filed Special Leave to
Appeal being SLP(Civil) No. 11143-11210 of 2014 which
was disposed of by this Court by following order
dated 30.07.2014: -
“Delay condoned.
The issue arising in this group of special
leave petitions is pending before this
Court in SLP(C) No.35373 of 2013 etc.
filed at the instance of selected
candidates. All the questions raised
herein would be open to the petitioner
State to be urged in SLP(C) No. 35373 of
2013. In that view of the matter, we do
not consider it necessary to issue formal
notice in these special leave petitions.
Accordingly, they are not being
entertained. The special leave petitions
are disposed in terms of the above.”
13. While entertaining the SLP No.35373 of 2013,
Ramjit Singh Kardam and others versus Sanjeev Kumar
and others, and other special leave petitions, this
Court passed following order on 29.11.2013: -
“Issue Notice.
17
Returnable in three weeks.
Status Quo, as on today shall be
maintained in the meantime.”
14. These appeals were heard on various dates by this
Court. On 22.01.2020, this Court passed following
order: -
“Hearing to continue tomorrow
(23.01.2020).
Learned counsel for the State may produce
the original record of selection.”
15. Further, when the matter was heard on
23.01.2020, learned counsel for the State as well as
Commission produced certain original records on which
date following order was passed: -
“Learned counsel for the State today
placed before this Court an original
tabulation register of the result sheet,
selection list register, interview marks
register of the member as well as of
expert, which indicate that marking have
been done separately. The letter dated
03.08.2008, in original, has also been
placed before the Court, which was also
placed before the High Court.
Heard in part.
List for continuation of arguments on
29.01.2020.
18
Learned counsel for the State shall
produce rest of the original records on
the next date of hearing i.e. 29.01.2020.”
16. Matter was further heard by this Court on
29.01.2020 when following order was passed:-
“We have heard learned counsel for the
parties.
Learned counsel appearing for the
Commission has placed before us further
original records i.e. File No.1 containing
correspondence and another original file.
On the earlier occasion learned counsel
for the Commission has produced the
original records which we have noticed in
our order dated 23.01.2020. The register
containing marking by expert member of the
Commission were produced from which it
appears that the expert member has graded
the candidates in A, B and C category
whereas the member of the Commission has
given marks out of 30. On our query as to
whether there was any guidelines to
reflect the evaluation by the Commission
member or how both were to be correlated,
learned counsel for the Commission could
not give any reply.
Learned counsel for the petitioners
has further submitted that in above facts
situation, Commission be directed to file
an affidavit explaining the relevant
procedure and the guidelines, if any, with
regard to selection in question and other
selection at the relevant time. With
regard to letter dated 03.08.2008, which
was produced in an envelope on the last
occasion, learned counsel for the
Commission submitted that the said letter
as well as the proceeding sheets are not
19
on the original records which have been
produced today.
Learned counsel for the respondents,
who were writ petitioners, submits that
the State Government may also be directed
to give details of the vacancies, existing
as on date in the relevant PTI Cadre.
We allow two weeks' time to the
learned counsel for the Commission to file
an affidavit giving details as indicated
above after serving the same on the
learned counsel for the petitioners, who
may also file response thereof within a
week thereafter.
List on 26.02.2020.”
17. In pursuance of the order of this Court dated
29.01.2020, an affidavit dated 11.02.2020 sworn by
Isha Kamboz, Secretary, Haryana Staff Selection
Commission, has been filed.
18. For the appellants, we have heard Shri Kapil
Sibal, learned senior counsel, Shri V.Giri, learned
senior counsel, Shri Ravindra Srivastava, learned
senior counsel, Shri Navneeti Prasad Singh, learned
senior counsel, Shri Rameswar Malik, learned senior
counsel and other learned counsel. Shri Manoj Swarup
has appeared for the respondent writ petitioners. We
20
have also heard other counsel appearing for respondent
writ petitioners. Shri A.K. Sinha and other counsels
for intervenors. We have heard Shri Anil Grover,
Additional Advocate General for State of Haryana as
well as Haryana State Selection Commission.
19. Learned counsel for the appellants challenging
the judgment and order of both learned Single Judge
and Division Bench of the High Court submits that
there were no sufficient grounds and materials before
the High Court to set aside the entire selection,
which was held for 1983 posts of PTI. It is submitted
that the respondent writ petitioners have participated
in selection without any demur or protest, hence, they
are not entitled to challenge the selection after
having been declared unsuccessful. On the principle of
estoppel, they are precluded from challenging the
selection.
20. It is submitted that criteria for selection was
uniformly applied to all the candidates and respondent
writ petitioners having not challenged the criteria of
21
selection cannot be allowed to challenge the criteria
after declaration of the select list.
21. It is submitted that there are no allegations of
any mala fide against the Chairman or any member of
the Commission or any candidate. The High Court
committed error in accepting the grounds of challenge
by the writ petitioners that those candidates who
secured good marks in Academics were deliberately
given less marks in the viva-voice so that they may go
out of select list. Insofar as not holding of the
written examination it is submitted that there were
grounds for scrapping the written examination which
was held on 01.02.2007.
22. The Commission decided not to hold the written
examination and proceeded to hold the selection on the
basis of criteria which was applied in the earlier
selection i.e. 2003 selection i.e. 60 marks for
Academics and qualification and 30 marks on the Vivavoice to which no exception can be taken by respondent
writ petitioners. The criteria which was applied in
22
the Selection was signed by all members of the
Commission on 03.08.2008 to which no exception can be
taken by the respondent writ petitioners.
23. The Courts cannot start looking on the marks
allocated in Viva-voice nor the same is in the domain
of the Court. The appellants are now over age and
having worked for 10 about years, at this stage, they
cannot be displaced. Increase of marks from 25 to 30
for viva-voice was not violative of any norms.
Jurisdiction under Article 226 is not an investigative
jurisdiction but it is adjudicatory jurisdiction.
24. Shri Manoj Swarup, learned senior counsel
appearing for the respondent writ petitioners submits
that the writ petitioners were unaware of the criteria
which was to be applied by the Commission in the
Selection and they came to know about the criteria of
60 marks for Academics Qualifications and 30 marks for
Interview only by final result dated 10.04.2010 when
it was mentioned in the final result.
23
25. The Commission could not have held any selection
without declaring the criteria beforehand. The written
examination which was re-notified on 11.06.2008 was
not proceeded with without any valid reason. Written
examination is sure mode of finding out merit in the
candidates and looking to number of the candidates
which was more than 20,000, the Commission has rightly
taken a decision to hold a written test of 200 marks
and interview of 25 marks which ought to have adhered
by the Commission.
26. The Commission never informed the candidates that
no written examination shall be held. The High Court
had summoned the original records and found out from
the original records that those candidates who were
meritorious as per the qualification and academic
marks were deliberately given marks ranging from 7 to
13 so that they may go out of the Select list. Those
candidates who had poor academic records were given
marks in interview ranging from 18 to 28 so that they
may get selected.
24
27. The Commission after taking a decision on
30.06.2008 not to hold the written examination,
decided to shortlist the candidates for interview on
the basis of marks obtained by them in the academics
and educational qualification and called the
candidates 8 times of the number of vacancies. Minimum
marks were also prescribed for candidates to be called
in the interview. The Commission subsequently did not
even adhere to their notification dated 11.07.2008 and
decided to call all eligible candidates for interview
with intend to help those who could not have come in
the criteria of 8 times of the number of vacancies on
the basis of Academic record.
28. The Commission from the very beginning has
proceeded in a manner which indicate that the merit
criteria was deliberately given up to accommodate
favourites. The entire selection has rightly been set
aside by learned Single Judge and affirmed by the
Division Bench. The respondent writ petitioners were
meritorious and deserved selection in event the
Commission could have proceeded to examine the
25
candidates on merit and as per the criteria of holding
written examination or screen the candidates 8 times
of the number of vacancies. The petitioner after
coming to know about the criteria from the result
dated 10.04.2010 immediately filed writ petition in
May, 2010 challenging the criteria. The undue delay in
declaring the result i.e. one and a half year creates
doubt about the fairness of the Commission in
declaring the result.
29. Shri Swarup submits that entire selection having
scrapped by the High Court, this Court may direct for
holding of fresh selection enabling the petitioners to
participate and get selected on their merit. It is
submitted that continuance of appellants on the basis
of interim order should not be given any credence. The
Commission in conducting the selection on the post of
PTI has not acted as per norms and requirement of law.
Decision to scrap the written test and further not to
hold the written test and all the subsequent steps
having taking by Chairman, who alone was not competent
to take decision, were without authority of law. It is
26
submitted that decision dated 03.08.2008 on which the
reliance has been placed by the Commission was never
taken on 03.08.2008 and when the learned Single Judge
asked for the criteria, the letter dated 03.08.2008
was prepared and got signed by all the members and
submitted in the High Court. The High Court has
rightly refused to believe that criteria was
formulated on 03.08.2008 by the Commission.
30. Learned counsel for the Commission as well as
State of Haryana submits that criteria which was
applied of 60 marks and 30 marks was the criteria
which was earlier applied also in 2003. It was
submitted that insofar allocation of marks by member
and expert there are no guidelines or materials to
indicate how the marks were awarded in the viva-voice.
He further submits that in view of the Haryana School
Education (Group-C) State Cadre Service Rules, 2012,
the post of PTI is converted as TGT and PTI have
become a dying cadre. He submits that at present there
are no vacancies on the post of PTI which has been
declared as dying cadre. Fresh selection can only be
27
held for the post of TGT (Physical Education) for
which qualifications have also been changed.
31. Shri Kapil Sibal, learned senior counsel
appearing for appellant in his rejoinder submits that
even though 1496 candidates got high marks in the
academics, they are only 10% of the total number of
candidates and only few hundreds got 20-27 marks in
the viva-voce. From where High Court got the material
to hold that 90 percent candidates who performed
poorly in the Academics got higher marks in the vivavoce? The Commission has said that marks of the
Academics and qualifications were not before the
Interview Board. All 8 members of the Commission
cannot be said to have conspired to follow a pattern
of work.
32. From the pleadings on the records and submissions
made by the learned counsel for the parties, following
points arise for consideration: -
i) Whether the respondent writ petitioners who
had participated in the selection were
28
estopped from challenging the selection in
the facts of the present case?
ii) Whether the respondent writ petitioners could
have challenged the criteria of selection
applied by Commission for selection after
they had participated in the selection?
iii) Whether the decision dated 30.06.2008 to
cancel the written examination and the
decision dated 11.07.2008 to call the
candidates for interview 8 times number of
vacancies on minimum percentage of marks as
fixed therein and the decision dated
31.07.2008 to call all the eligible
candidates for interview were arbitrary
decision to change selection criteria
published on 28.12.2006, which have effect of
downgrading the merit in the Selection?
iv) Whether it was obligatory for the Commission
as a body to take all decisions pertaining to
Selection on the post of PTI including the
29
decision of not holding written examination,
decision to screen on the basis 8 times of
vacancies and decision to call all eligible
candidates and whether aforesaid decisions
were taken by the Chairman alone?
v) Whether on 03.08.2008, a decision was taken
by the commission fixing the criteria for the
selection on the post of PTI which was signed
by all the members on 03.08.2008 as claimed
by the Commission?
vi) Whether without there being any specific
allegations of mala fide against the Chairman
and members of the Commission and without
they having been impleaded by name as party
respondents, the writ petitioners could have
challenged the allocation of marks in vivavoce and High Court was right in accepting
the claim that candidates who got highest
marks for academic qualifications ranging
between 40 to 48.74 marks have been awarded
30
just 7 to 9 marks in the viva-voce and as
against it there are hundreds of selected
candidates who have been awarded 20 to 27 out
of 30 marks in the viva-voce to ensure that
they outclass the academically bright
candidates?
vii) Whether no fresh selection can be held as
directed by learned Single Judge since as per
2012 Rules, the post of PTI has been declared
as a dying cadre and the post has merged into
the post of TGT Physical Education?
33. Before we proceed to consider the submissions of
the learned counsel for the parties and the points
formulated as above, we need to notice the
constitution of Haryana Staff Selection Commission,
relevant notifications and orders governing its
powers and procedures. By notification dated
28.01.1970, the Governor of Haryana, in exercise of
power conferred by Article 309 of the Constitution of
India constituted the Subordinate Services Selection
31
Board. All appointments to non-gazetted class-III
posts under the Haryana Government except
appointments of officers and employees of Punjab &
Haryana High Court provided for in accordance with
Article 229 of the Constitution of India were
mandated to be made on the advice of the Board. Vide
notification dated 09.12.1997, the words “Subordinate
Services Selection Board” were substituted by
“Haryana Staff Selection Commission”. Vide
notification dated 28.07.1998, sub-para (d) of para 6
was substituted, according to which 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 and the criteria
for selection of posts fixed earlier by the
Board/Commission shall be deemed to have been fixed
under this sub-paragraph. Vide notification dated
21.06.2007, paragraph 1 was substituted with effect
from 20.04.2007, according to which the Commission
shall consist of nine members including the Chairman,
out of whom a minimum of two members would be such as
32
have held office for at least ten years either under
the Government of India or under the Government of
the State. In this notification sub-para 4 reads as
follows:-
“(iv) in paragraph 6, for clause (d), the
following clause shall be substituted and
shall be deemed to have been substituted
with effect from 10th January, 2006,
namely:-
“(d) methods of recruitment and
the principles to be followed in
making appointments to the Group
B, Group C and Group D posts
under the State Government. The
Commission shall devise the mode
of selection and fix the criteria
for selection of posts for which
requisition is sent to it by a
department of an office, as it
may deem appropriate and the
criteria for the selection of
posts fixed earlier by the
Board/Commission shall be deemed
to have been fixed under the
clause.”
34. As per notifications mentioned above, the
Commission was empowered to devise the mode of
selection and fix the criteria for selection of posts
for which request was sent to it by department or an
office. Sub-paragraph 4 of the notification dated
20.04.2007 as extracted above, which was substituted
33
w.e.f. 10.01.2006 empowered the Commission providing
that Commission shall devise the mode of selection
and fix the criteria for selection of posts and for
which request is sent by a department or an office.
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 with which we are concerned in these
appeals.
35. We having noticed that the power is vested in the
Commission to fix the criteria for selection, we now
proceed to consider points for determination.
Point Nos.1 and 2
36. Learned counsel for the appellant at very outset
contended that the writ petitions filed by the
respondent challenging the select list dated
10.04.2001 ought not to have been entertained by the
High Court since the respondent having participated
in the selection without any demur or protest, they
34
are estopped from challenging the selection. The
submission is refuted by the respondent contending
that the above principle of estopple is not
applicable in the facts of the present case. The
petitioner being not even aware of the criteria,
which was to be applied for selection, which they
came to know only after select list was published,
there was no occasion to make any challenge by the
respondents before the above date.
37. 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. The appellants have placed reliance on
judgment of this Court in Madan Lal and Others Vs.
State of J&K and Others, (1995) 3 SCC 486; K.A.
Nagamani Vs. Indian Airlines and Others, (2009) 5 SCC
515; Manish Kumar Shahi Vs. State of Bihar and
Others, (2010) 12 SCC 576; Madras Institute of
Development Studies and Another Vs. K.
Sivasubramaniyan and Others, (2016) 1 SCC 454 and
35
Ashok Kumar and Another Vs. State of Bihar and
Others, (2017) 4 SCC 357.
38. In Madan Lal and Others(supra), this Court laid
down following in paragraph 9:-
“9. ……………………….It is now well settled that
if a candidate takes a calculated chance
and appears at the interview, then, only
because the result of the interview is not
palatable to him, he cannot turn round and
subsequently contend that the process of
interview was unfair or the Selection
Committee was not properly constituted. In
the case of Om Prakash Shukla v. Akhilesh
Kumar Shukla, 1986 Supp SCC 285, it has
been clearly laid down by a Bench of three
learned Judges of this Court that when the
petitioner appeared at the examination
without protest and when he found that he
would not succeed in examination he filed
a petition challenging the said
examination, the High Court should not
have granted any relief to such a
petitioner.”
39. The above preposition has been reiterated in
other judgments of this Court noted above. In the
present case, whether the respondents-writ
petitioners are estopped from challenging the
selection? While noticing the facts of the case, we
have noted above that both appellants and the
respondents had submitted applications in pursuance
36
of advertisement dated 28.07.2006 No.6/2006. In
advertisement, it was 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 public notice dated
30.06.2008, it was cancelled. Another public notice
37
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, which was scheduled to take place in from
2
nd September to 17th October, 2008. 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. When candidate is not aware of the
criteria of selection under which he was subjected in
38
the process and the said criteria for the first time
is published along with final result dated
10.04.2010, he cannot be estopped from challenging
the criteria of selection and the entire process of
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. This Court in Raj
Kumar and Others Vs. Shakti Raj and Others, (1997) 9
SCC 527 held that when glaring illegalities have been
committed in the procedure to get the candidates for
examination, the principle of estoppel by conduct or
acquiescence has no application. Referring to
judgment of this Court’s judgment in Madan Lal
(supra), this Court laid down following in paragraph
16:-
39
“16. …………………………………………The entire procedure
is also obviously illegal. It is true, as
contended by Shri Madhava Reddy, that this
Court in Madan Lal v. State of J&K, (1995)
3 SCC 486 and other decisions referred
therein had held that a candidate having
taken a chance to appear in an interview
and having remained unsuccessful, cannot
turn round and challenge either the
constitution of the Selection Board or the
method of selection as being illegal; he
is estopped to question the correctness of
the selection. But in his case, the
Government have committed glaring
illegalities in the procedure to get the
candidates for examination under the 1955
Rules, so also in the method of selection
and exercise of the power in taking out
from the purview of the Board and also
conduct of the selection in accordance
with the Rules. Therefore, the principle
of estoppel by conduct or acquiescence has
no application to the facts in this case.
Thus, we consider that the procedure
offered under the 1955 Rules adopted by
the Government or the Committee as well as
the action taken by the Government are not
correct in law.”
40. One more judgment of this Court which supports
the view taken by the High Court is Bishnu Biswas and
others Union of India and others, (2014) 5 SCC 774.
An advertisement was published calling applications
for appointment to the post of Group D staff. The
Recruitment Rules only provided for a written
examination having 50 maximum marks. After holding
40
written examination notice was issued calling the
successful candidates for interview. Although such
interview was not part of the recruitment process, a
select list was published which was challenged in the
Tribunal. The Tribunal returned a finding that the
manner in which marks have been awarded in the
interview to the candidates indicated lack of
transparency. The High Court upheld the reasoning of
the Tribunal but modified the order to the extent of
continuing the recruitment process from the point it
stood vitiated. This Court laid down following in
paragraphs 19 and 20:
“19. 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
41
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 least in
respect of age as the advertisement was
issued more than six years ago.
20. Thus, in the facts of this case the
direction of the High Court to continue
with the selection process from the point
it stood vitiated does not require
interference. In view of the above, the
appeals are devoid of merit and are
accordingly dismissed. No costs.”
41. 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. We, thus,
hold that the writ petitions filed by the petitioners
could not have been thrown on the ground of estoppel
and the writ petitioners could very well challenge
42
the criteria of selection applied by the Commission,
which was declared by the Commission only at the time
of declaration of the final result. We, thus, answer
point Nos. 1 and 2 as follows:-
(i) The writ petitioners, who had participated
in the selection are not estopped from
challenging the selection in the facts of
the present case.
(ii) The writ petitioners could have very well
challenged the criteria of selection, which
was declared by the Commission only in the
final result declared on 10.04.2010.
POINT NOS.3, 4 AND 5
42. The selection and appointment on post borne on
the State establishment provides an opportunity to
citizens of public employment. The personnel who man
the civil posts in State apart from carrying out
objectives and policies of State also serve as source
of sustenance for their families. The selection and
appointment on post in the State have to conform to
the fundamental rights guaranteed to the citizens
under Articles 14 and 16. The objective of a State in
selecting persons into public service has always been
43
to select the best and most suitable person. Justice
O. Chinnappa Reddy, J. speaking for this Court in
Lila Dhar vs. State of Rajasthan and others, (1981) 4
SCC 159, had laid down that open competition has
been accepted universally as the gateway to public
services. In paragraphs 4 and 5 following has been
laid down:
“4. The object of any process of selection
for entry into a public service is to
secure the best and the most suitable
person for the job, avoiding patronage and
favouritism. Selection based on merit,
tested impartially and objectively, is the
essential foundation of any useful and
efficient public service. So, open
competitive examination has come to be
accepted almost universally as the gateway
to public services.
“The ideal in recruitment is to do
away with unfairness.
Competitive examinations were
the answer to the twin problems
represented by democracy and the
requirements of good
administration. They were the means
by which equality of opportunity
was to be united with
efficiency.... By this means
favouritism was to be excluded and
the goal of securing the best man
for every job was to be achieved.
Open competitive examinations
are a peculiarly democratic
44
institution. Any qualified person
may come forward. His relative
competence for appointment is
determined by a neutral,
disinterested body on the basis of
objective evidence supplied by the
candidate himself. No one has
‘pull’; everyone stands on his own
feet. The system is not only highly
democratic, it is fair and
equitable to every competitor. The
same rules govern, the same
procedures apply, the same
yardstick is used to test
competence.”
5. How should the competitive examination
be devised? The Kothari Committee on
Recruitment Policy and Selection Methods
in their report said:
“A system of recruitment almost
totally dependent on assessment of
a person’s academic knowledge and
skills, as distinct from ability to
deal with pressing problems of
economic and social development,
with people, and with novel
situations cannot serve the needs
of today, much less of tomorrow....
We venture to suggest that our
recruitment procedures should be
such that we can select candidates
who can not only assimilate
knowledge and sift material to
understand the ramifications of a
situation or a problem but have the
potential to develop an original or
innovative approach to the solution
of problems.”
It is now well-recognised that while a
written examination assesses a candidate’s
45
knowledge and intellectual ability, an
interview-test is valuable to assess a
candidate’s overall intellectual and
personal qualities. While a written
examination has certain distinct
advantages over the interview-test there
are yet no written tests which can
evaluate a candidate’s initiative,
alertness, resourcefulness,
dependableness, cooperativeness, capacity
for clear and logical presentation,
effectiveness in discussion, effectiveness
in meeting and dealing with others,
adaptability, judgment, ability to make
decision, ability to lead, intellectual
and moral integrity. Some of these
qualities may be evaluated, perhaps with
some degree of error, by an interviewtest, much depending on the constitution
of the Interview Board.”
43. In the above judgment this Court has elaborately
considered the merit of selection of written
examination as well as usefulness of interview test.
The above observations by this Court were quoted with
approval by the Constitution Bench of this Court in
Ashok Kumar Yadav and others vs. State of Haryana and
others, 1985(4) SCC 417. In paragraph 23 following
was laid down:
“23. This Court speaking through Chinnappa
Reddy, J. pointed out in Lila Dhar v.
State of Rajasthan that the object of any
process of selection for entry into public
service is to secure the best and the most
46
suitable person for the job, avoiding
patronage and favouritism. Selection based
on merit, tested impartially and
objectively, is the essential foundation
of any useful and efficient public
service. So open competitive examination
has come to be accepted almost universally
as the gateway to public services. But the
question is how should the competitive
examination be devised? The competitive
examination may be based exclusively on
written examination or it may be based
exclusively on oral interview or it may be
a mixture of both. It is entirely for the
Government to decide what kind of
competitive examination would be
appropriate in a given case………………”
44. After the advertisement of the vacancies of PTI,
the Commission issued a public notice on 28.12.2006
deciding to hold a written examination of 200 marks
and viva voce test of 25 marks to select the best
suitable candidates for 1983 posts of PTI. The public
notice further contemplated minimum qualifying marks
50% for general category and 45% for SC and BC and
40% for ESM. The above criteria evolved by the
Commission for selection on the posts was implemented
by holding the written examination on 21.01.2007
which examination was cancelled after receiving some
complaints and reports regarding malpractices in
47
examination. Even though examination was cancelled
but the Commission continued with the same criteria
for completing the selection which was so notified on
11.06.2008 again in which examination on the same
pattern was to take place on 20.07.2008. 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 note dated
30.06.2008 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 a
note dated 10.07.2008 which mentioned that the worthy
Chairman had issued oral direction that in respect of
advertisement No.6 of 2006 Category No.23, candidates
48
are required to be short-listed 8 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 Chairman on 11.07.2008 approved the notice to be
published in the Newspapers with detail regarding
short-listing of the candidate’s category wise with
minimum percentage. 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 interview was fixed between
02.09.2008 and 17.10.2008 and the candidates were
interviewed by eight Committees.
45. The above sequence of events indicates that in
accordance with the “special instruction” extracted
above 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. 20836 who had applied
49
in pursuance of the advertisement for the post of
PTI. The criteria was implemented by holding a
written test on 21.07.2007 which was cancelled due to
some complaints. The written test was again notified
for 20.07.2008 which was withdrawn by notice
published on 30.06.2008, the earlier criterion was
given a go bye by another notification dated
11.07.2008. The above 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 candidate. The Division Bench
of the High court on the alteration of the mode of
selection as noticed above has made following
observation in paragraph 37 of the judgment:
“(37) Thus, even accepting the
appellants’ plea that ‘selection criteria’
or ‘mode of selection’ can be altered
midstream to short-list the candidates
with higher merit, here is a case where
the alterations have been designed with
the sole object of downgrading and not
upgrading the standards of selection to
public employment.
50
Was the Chairman competent to take
policy decisions like ‘selection criteria’
or ‘mode of selection’?
46. As per the notification extracted above 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 it is assumed for the sake of the argument that
the Commission can change the criteria of selection
from time to time, the said power has to be exercised
not in an arbitrary manner.
47. We may in this context refer to three-Judge Bench
judgment of this Court in Tamil Nadu Computer Science
BED Graduate Teachers Welfare Society(1) vs. Higher
Secondary School Computer Teachers Association and
others, 2009(14) SCC 517. In the above case Computer
instructors were appointed on contract basis to
various Schools. The Government decided to hold a
special test by the Teacher Recruitment Board for
selection of computer instructors. On 10.10.2008 the
51
State Government took decision that minimum
qualification marks would be 50%. Special Recruitment
Test was announced as 12.10.2008. On the night of
12.10.2008 a list of candidates for appointment to
the post of computer instructors based on the special
recruitment test was put on the Internet. While
publishing the said marks of the candidates, it was
made clear that all candidates who have secured 35%
marks in the test would be called for certificate
verification. The State Government reduced the
minimum qualifying marks to 35%. This Court did not
approve the reduction of qualifying marks from 50% to
35%. Following was laid down in paragraph 33:
“33. We, however, cannot hold that the
subsequent decision of the Government
thereby changing qualifying norms by
reducing the minimum qualifying marks from
50% to 35% after the holding of the
examination and at the time when the
result of the examination was to be
announced and thereby changing the said
criteria at the verge of and towards the
end of the game as justified, for we find
the same as arbitrary and unjustified.
This Court in Hemani Malhotra v. High
Court of Delhi,(2008) 7 SCC 11, has held
that in recruitment process changing rules
of the game during selection process or
when it is over are not permissible.
52
48. Learned counsel for the appellant has submitted
that judgments of this Court laying down the criteria
for selection cannot be changed during the course of
selection has been referred to a larger Bench by a
judgment of this Court in Tej Prakash Pathak and
others vs. Rajasthan High Court and others, 2013(4)
SCC 540, hence the judgment of this Court laying down
the criteria cannot be changed during the course of
the selection is yet to be tested. For the purposes
of the present case we proceed on the assumption that
even if 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. The High Court did not
commit any error in not upholding the change of
criteria effected after start of selection process
with which finding we fully concur.
49. The notifications issued under proviso to Article
309 of the Constitution of India specifically
53
provides that the Commission shall devise the mode of
selection and fix the criteria for selection of
posts. The power to devise the mode of selection and
fix the criteria was, thus, entrusted to the
Commission. 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. In
Principles of Administrative Law, M.P. Jain & S.N.
Jain, 6th Edition, writes in Chapter XXII states:-
“When power is conferred on a multi-member
body, the power ought to be exercised by
the concerned body; the power cannot be
exercised either by the chairman alone or
by one of its members. This can be done
only if the body concerned delegates power
to the chairman or a single member to
discharge certain functions on its
behalf.”
50. When there are no statutory rules regarding
allocation of business of the Commission or
delegating its business to members or Committee, the
54
Commission could very well by its resolution devise
its own mode of exercising such power or function,
which preposition has been laid down by this Court by
a Constitution Bench in Naraindas Indurkhya Vs. The
State of Madhya Pradesh and Others, (1974) 4 SCC 788
wherein in paragraph 17 following was stated:-
17. ……………………… Now we do not dispute the
general proposition that when a power or
function is given by the statute to a
corporate body and no provision is made in
the statute as to how such power or
function shall be exercised, the corporate
body can by a resolution passed at the
general meeting devise its own mode of
exercising such power or function, such as
authorising one or more of the members to
exercise it on behalf of the Board…………………”
51. 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 have all been 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 handi-work of the Chairman, which decision was
55
not the decision of the Commission. It is not even
claimed in the affidavit filed before the High Court
or before this Court that said decisions were
decisions taken by the Commission. The conclusion
is, thus, inescapable that 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 statutory notifications when entrust
the Commission to devise the mode of selection and
fix the criteria and the Commission being multimember 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.
52. Now, we come to the decision dated 03.08.2008,
which was a decision fixing the criteria for
selection signed by all the members of the
Commission, the High Court after minutely looking
into the original records has held that in the
original records, which was produced before the High
Court by the Commission, there is no mention of the
56
criteria for making selection dated 03.08.2008 nor
the said one page decision was part of the original
records. The said one-page decision was separately
produced before the High Court and before us.
Learned counsel for the Commission have placed that
one-page decision in an envelope before us also which
we have also perused. The Division Bench of the High
Court in paragraph 42 has dealt with the decision
dated 03.08.2008 and has affirmed the findings of the
learned Single Judge that the said decision dated
03.08.2008 was prepared only when learned Single
Judge directed the Commission to produce the criteria
of selection. Division Bench of the High Court has
given weighty reasons for not accepting the claim set
up by the Commission that criteria was fixed on
03.08.2008 as claimed. The observations of the High
Court in paragraphs 41 and 42 are to the following
effect:-
“(41) It is unfortunate that instead of
reversing his unlawful decisions, taken by
side-tracking eight other Members (as it
was a nine-Member body since 21.06.2007),
the Chairman involved those other Members
in a mock-drill and flashed a surprise on
the learned Single Judge by producing the
57
magical ‘single loose sheet’ of their
purported decision dated 03.08.2008 laying
down the ‘criteria for selection’.
(42) We have also perused the decision
dated 03.08.2008 produced in a sealed
envelope. We firmly affirm the findings
returned by the learned Single Judge to
discard the same. We say so for the
reasons that (i) various administrative
decisions whether taken by the Commission
as a multi-Member body (only one such
decision found in the Files) or by the
Chairman contained in the Files produced
before us, are preceded by an ‘Office
Note’ or ‘proposal’ and are invariably
forwarded by the Secretary of the
Commission; (ii) the original record of
decisions taken by the Chairman in the
last week of September, 2008 or in first
week of October, 2008 do not even whisper
about any meeting of the Commission held
on 03.08.2008 or the decision taken
therein; and (iii) the unusual manner in
which the ‘loose sheet’ has been prepared
casts a serious doubt on its genuineness.
The so-called decision dated 03.08.2008
was thus apparently contrived to defeat
the cause of the writ-petitioners and to
mislead the learned Single Judge, who has
rightly held that it was only when he
directed to produce the criteria of
selection that this ‘loose sheet’ “was
prepared and produced in Court”.”
53. We fully concur with the above findings of the
High Court with regard to decision dated 03.08.2008.
It is, thus, proved that decision dated 03.08.2008
was prepared by the Commission subsequent to
58
declaration of the result and only when the learned
Single Judge directed the Commission to produce the
criteria under which the selection for the post of
PTI was undertaken.
54. As noted above 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” have never been 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.
55. As per advertisement dated 20.07.2006, the
Commission had published the criteria for selection
on 28.12.2006 which was implemented also, hence,
there was no occasion to give up the merit selection
in midway. Further, when no reasons are forthcoming
to support the so called ‘administrative reasons’ in
59
the decision dated 30.06.2008 which was so stated by
Chairman for the scrapping the written test, we have
to hold the said decision arbitrary and without
reason. The written test consisting of 100 objective
type of multiple choice questions out of which 60
questions relating to academic knowledge of the
respective subjects including skill and method of
teaching ability and 40 questions relating to general
knowledge, general English and Hindi upto matric
standard was well thought screening test, easy to
conduct and easy to evaluate. The Commission being
recruiting body abdicated its obligation of screening
out the best candidates; The competitive examination,
are means by which equality of opportunity was to be
united with efficiency. By the above method
favouritism was to be excluded and the goal of
securing the best man for the job was to be achieved.
We, thus, conclude that decision dated 30.06.2008 for
not holding the written examination and steps taken
consequent thereto were all arbitrary decisions,
unsustainable in law.
60
56. At this stage we may note one more submission of
Shri Kapil Sibal. Shri Sibal submits that when the
Commission published notice dated 30.06.2008 that no
written test shall be held, the writ petitioners
ought to have challenged the above decision and the
petitioners should have insisted that written
examination may be held. They having not raised any
challenge, at this stage, cannot be permitted to say
that written test ought to have been held.
57. We having held that change in criteria of
selection was never notified by the Commission and
about the change in process of selection candidates
were kept in total dark and for the first time the
criteria applied in selection process was published
along with result dated 10.04.2008, the writ
petitioners cannot be estopped in challenging the
arbitrary criteria so applied. The submission of Shri
Sibal cannot be accepted. The petitioners have never
questioned the criteria which was published on
28.12.2006 i.e. written test of 200 marks and viva
voce of 25 marks, merely because they participated in
the process of selection after the change of
61
criteria, their right to challenge the arbitrary
change cannot be lost. Estopping the petitioners from
challenging the change of criteria will be giving
seal to arbitrary changes affected by Chairman as
noted above.
58. In view of the foregoing discussions, we answer
point Nos.3,4 and 5 in following manner: -
Ans.3:
The decisions dated 30.06.2008, 11.07.2008 and
31.07.2008 were arbitrary decisions without any
reason to change the selection criterion published on
28.12.2006 which have effect of downgrading the merit
in the selection.
Ans.4:
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.
62
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.
Ans.5:
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 learned Single Judge asked for criteria of the
selection, which was produced in a separate loose
sheet signed by all members.
Point No.6
59. Shri Kapil Sibal, learned senior counsel has
emphatically submitted that in the writ petitions,
there are no allegations of mala fide against the
Chairman or any member of the Commission and further
neither Chairman nor any members being impleaded as
63
party respondent by the writ petitioner, the
petitioners could not have challenged the allocation
of marks in viva voce and there was no basis for any
claim that marks in the viva voce of candidates
having high academic qualification were deliberately
reduced and those, who had poor academic records were
deliberately given marks between 20 to 27 in the viva
voce. Shri Kapil Sibal has placed reliance on
judgment of this Court in Ratnagiri Gas and Power
Private Limited Vs. RDS Projects Limited and Others,
(2013) 1 SCC 524, where this Court has laid down that
the law casts a heavy burden on the person alleging
mala fides. This Court has further laid down that
when the petitioners alleges malice in fact, it is
obligatory for the petitioner to furnish particulars
and implead the persons against whom such malice in
fact is alleged. In paragraphs 25, 26.1, 26.2 and
27, following has been laid down:-
“25. ………………….The law casts a heavy burden
on the person alleging mala fides to prove
the same on the basis of facts that are
either admitted or satisfactorily
established and/or logical inferences
deducible from the same. This is
particularly so when the petitioner
64
alleges malice in fact in which event it
is obligatory for the person making any
such allegation to furnish particulars
that would prove mala fides on the part of
the decision-maker. Vague and general
allegations unsupported by the requisite
particulars do not provide a sound basis
for the court to conduct an inquiry into
their veracity.
XXXXXXXXXXXXXXXX
26.1. In State of Bihar v. P.P. Sharma,
1992 Supp. (1) SCC 222, this Court summed
up the law on the subject in the following
words: (SCC p. 260, paras 50-51)
“50. ‘Mala fides’ means want of
good faith, personal bias,
grudge, oblique or improper
motive or ulterior purpose. The
administrative action must be
said to be done in good faith, if
it is in fact done honestly,
whether it is done negligently or
not. An act done honestly is
deemed to have been done in good
faith. An administrative
authority must, therefore, act in
a bona fide manner and should
never act for an improper motive
or ulterior purposes or contrary
to the requirements of the
statute, or the basis of the
circumstances contemplated by
law, or improperly exercised
discretion to achieve some
ulterior purpose. The
determination of a plea of mala
fide involves two questions,
namely, (i) whether there is a
personal bias or an oblique
motive, and (ii) whether the
65
administrative action is contrary
to the objects, requirements and
conditions of a valid exercise of
administrative power.
51. The action taken must,
therefore, be proved to have been
made mala fide for such
considerations. Mere assertion or
a vague or bald statement is not
sufficient. It must be
demonstrated either by admitted
or proved facts and circumstances
obtainable in a given case. If it
is established that the action
has been taken mala fide for any
such considerations or by fraud
on power or colourable exercise
of power, it cannot be allowed to
stand.”
(emphasis supplied)
26.2. We may also refer to the decision of
this Court in Ajit Kumar Nag v. Indian Oil
Corpn. Ltd., (2005) 7 SCC 764 where the
Court declared that allegations of mala
fides need proof of high degree and that
an administrative action is presumed to be
bona fide unless the contrary is
satisfactorily established. The Court
observed: (SCC p. 790, para 56)
“56. … It is well settled that
the burden of proving mala fide
is on the person making the
allegations and the burden is
‘very heavy’. (Vide E.P. Royappa
v. State of T.N., (1974) 4 SCC
3) There is every presumption in
favour of the administration
that the power has been
exercised bona fide and in good
faith. It is to be remembered
66
that the allegations of mala
fide are often more easily made
than made out and the very
seriousness of such allegations
demands proof of a high degree
of credibility. As Krishna Iyer,
J. stated in Gulam Mustafa v.
State of Maharashtra, (1976) 1
SCC 800 (SCC p. 802, para 2):
‘It (mala fide) is the last
refuge of a losing litigant.’”
27. There is yet another aspect which
cannot be ignored. As and when allegations
of mala fides are made, the persons
against whom the same are levelled need to
be impleaded as parties to the proceedings
to enable them to answer the charge. In
the absence of the person concerned as a
party in his/her individual capacity it
will neither be fair nor proper to record
a finding that malice in fact had vitiated
the action taken by the authority
concerned. It is important to remember
that a judicial pronouncement declaring an
action to be mala fide is a serious
indictment of the person concerned that
can lead to adverse civil consequences
against him.……………………….”
60. There cannot be any dispute to the above
preposition of law reiterated by this Court as above.
We have noticed from the array of the parties in the
writ petition that neither Chairman nor the members
of the Commission were personally impleaded nor there
67
are any specific allegations of mala fide against the
Chairman or the members of the Commission.
61. The present is not a case of malice in fact. The
“malice in fact” and “malice in law” are two wellknown concepts in law. In Ratnagiri Gas and Power
Private Limited (supra), this Court has dealt with
both the concepts, i.e., “malice in fact” and “malice
in law”. Dealing with the conceptual difference
between “malice in fact” and “malice in law”, this
Court laid down following in paragraphs 30, 31 and
32:-
“30. ……………………….The conceptual difference
between the two has been succinctly stated
in the following paragragh by Lord Haldane
in Shearer v. Shields, 1914 AC 808 (HL)
quoted with approval by this Court in ADM,
Jabalpur v. Shivakant Shukla, (1976) 2 SCC
521: (SCC p. 641, para 317)
“317. … ‘Between “malice in fact”
and “malice in law” there is a
broad distinction which is not
peculiar to any system of
jurisprudence. The person who
inflicts a wrong or an injury
upon any person in contravention
of the law is not allowed to say
that he did so with an innocent
mind. He is taken to know the law
and can only act within the law.
He may, therefore, be guilty of
68
“malice in law”, although, so far
as the state of his mind was
concerned he acted ignorantly,
and in that sense innocently.
“Malice in fact” is a different
thing. It means an actual
malicious intention on the part
of the person who has done the
wrongful act.’” (Shearer case,
1914 AC 808 HL, AC pp. 813-14)
31. Reference may also be made to the
decision of this Court in State of A.P. v.
Goverdhanlal Pitti, (2003) 4 SCC 739 where
the difference between “malice in fact”
and “malice in law” was summed up in the
following words: (SCC p. 744, paras 12-13)
“12. The legal meaning of
‘malice’ is ‘ill will or spite
towards a party and any indirect
or improper motive in taking an
action’. This is sometimes
described as ‘malice in fact’.
‘Legal malice’ or ‘malice in law’
means ‘something done without
lawful excuse’. In other words,
‘it is an act done wrongfully and
wilfully without reasonable or
probable cause, and not
necessarily an act done from ill
feeling and spite. It is a
deliberate act in disregard of
the rights of others.’ (See Words
and Phrases Legally Defined, 3rd
Edn., London, Butterworths,
1989.)
13. Where malice is attributed to
the State, it can never be a case
of personal ill will or spite on
the part of the State. If at all
it is malice in legal sense, it
69
can be described as an act which
is taken with an oblique or
indirect object.”
(emphasis supplied)
32. To the same effect is the recent
decision of this Court in Ravi Yashwant
Bhoir v. Collector, (2012) 4 SCC 407
wherein this Court observed: (SCC p. 431,
paras 47-48)
“Malice in law
47. This Court has consistently
held that the State is under an
obligation to act fairly without
ill will or malice in fact or in
law. Where malice is attributed
to the State, it can never be a
case of personal ill will or
spite on the part of the State.
‘Legal malice’ or ‘malice in law’
means something done without
lawful excuse. It is a deliberate
act in disregard to the rights of
others. It is an act which is
taken with an oblique or indirect
object. It is an act done
wrongfully and wilfully without
reasonable or probable cause, and
not necessarily an act done from
ill feeling and spite.
48. Mala fide exercise of power
does not imply any moral
turpitude. It means exercise of
statutory power for ‘purposes
foreign to those for which it is
in law intended’. It means
conscious violation of the law to
the prejudice of another, a
depraved inclination on the part
of the authority to disregard the
rights of others, where intent is
manifested by its injurious acts.
70
Passing an order for unauthorised
purpose constitutes malice in
law. (See ADM, Jabalpur v.
Shivakant Shukla, (1976) 2 SCC
521, Union of India v. V.
Ramakrishnan, (2005) 8 SCC 394
and Kalabharati Advertising v.
Hemant Vimalnath Narichania,
(2010) 9 SCC 437.)”
62. 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 as we have found above, 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.
71
63. 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
observations, which have been made by the Division
Bench in paragraphs 34 and 36 were inferences drawn
by the High Court based on pattern of the marks
allocated to some of the selected candidates and nonselected candidates. 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. We, thus, do not find any substance
in the submission of Shri Sibal that since no
72
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. Point No.6 is
answered accordingly.
Point No.7
64. The learned Single Judge in the impugned judgment
while allowing the writ petition issued following
directions: -
“These writ petitions are thus allowed.
The purported selection made by the
Haryana Staff Selection Commission in
pursuance to the advertisement No.6/2006,
result whereof was published on 11.4.2010
relating to category No. 23 for the posts
of PTIs, is hereby quashed. A direction
is issued to the Haryana Staff Selection
Commission to hold a fresh selection, in
accordance with law, within a period of
five months from the date of receipt of
certified copy of this order.”
65. Learned counsel appearing for the Commission and
for the State of Haryana submitted that no fresh
selection can be conducted on the post of PTI in view
of the statutory rules namely, Haryana School
73
Education State Cadre Service Rules, 2012, he submits
that in the affidavit, which has been filed by the
Commission on 11.02.2020, in paragraph 4, following
has been stated:-
“4. That so far, the details of the
vacancies existing as on date in the
relevant PTI Cadre, the Haryana Staff
Selection Commission wrote a letter to
Department of School Education to get the
status of existing vacancies in PTI Cadre.
In response to above said letter, the
Department of School Education provided
the following response and the operative
part of said response is reproduced as
follows:-
“In this regard, it is submitted
that the Classical & Vernacular
(C&V) cadre which includes the
appointment of PTI also has been
declared diminishing cadre by the
Government of Haryana by way of
notifying the Haryana School
Education (Group-C) State Cadre
Service Rule, 2012 vide
notification No. GSR12/Const./Art.309/2012 dated
11.04.2012. The operative part
of these rules, defined in Rule9(5) is relevant to be detailed
herein:-
The present Classical &
Vernacular (C&V) cadre consisting
of the posts of Sanskrit
Teachers, Hindi Teachers, Punjabi
Teachers, Physical Training
Instructors (PTIs), Art & Craft
Teachers (Drawing Teachers),
Tailoring Teachers and Tabla
74
Players and governed by the
Haryana State Education School
Cadre (Group C) Service Rules,
1998 shall be converted to TGT in
relevant subject and no further
requirement shall be made to
these categories when the present
incumbent on the notification of
these rules vacate the post on
his promotion, retirement or any
other purpose.
Since all the vacancies which
were in existence on 11.04.2012
have already been converted in
TGT cadre and further the vacancy
came into existence due to
promotion, retirement or any
other ground of a PTI has also
got converted in TGT cadre,
therefore, there exists no post
of PTI now.
The latest status of vacancies of
PTI is submitted for
consideration and further action
thereon.”
66. Elaborating his submission, learned counsel
submits that the post of PTI is a dying cadre and now
under Rules, 2012, there is post of TGT (Physical
Education), which has higher qualifications, i.e.,
Graduate with Physical Education from a recognised
university. He submits that all posts of PTI have
been converted into TGT, thus, fresh selection, if
any, can be only on the post of TGT (Physical
75
Education). He has also referred to Rule 9(5) of
Rules, 2012, which is to the following effect:-
“9(5). The present Classical & Vernacular
(C&V) Cadre consisting of the posts of
Sanskrit Teachers, Hindi Teachers, Punjabi
Teachers, Physical Training Instructors
(PTIs), Art & Craft Teachers (Drawing
Teachers), Tailoring Teachers and Tabla
Players and governed by the Haryana State
Education School Cadre (Group C) Service
Rules, 1998 shall be converted to TGT in
relevant subject and no further
recruitment shall be made to these
categories when the present incumbent on
the notification of these rules vacate the
post on his promotion, retirement or any
other purpose.”
67. Rule 2(h) defines TGT in following words:-
“(h) "TGT" means Trained Graduate Teacher
in the relevant subject appointed after
notification of these rules and shall
include masters appointed before
notification of these rules;“
68. Rule 9(1) deals with recruitment in the services.
Rule 9(1)(j), which is relevant for the present case
as follows:-
“(j) in the case of TGT Physical Education
(PT Master),
(i) 67% by direct recruitment on
contract basis; and
(ii) 33% by Promotion from PTIs; or
76
(iii) by transfer or deputation of an
official already in service of any
State Government, Government of
India; “
69. When the rule contemplates filling up of the post
of TGT (Physical Education) by 33% by promotion from
PTI, PTI continues in the establishment, who can be
promoted as TGT (Physical Education). The submission
cannot be accepted that all PTI in block have been
upgraded as TGT (Physical Education). Had the rule
contemplated such result, there was no question of
filling up TGT (Physical Education) by 33% by
promotion from PTI. This court had occasion to
examine Rules, 2012 in State of Haryana and Another
Vs. Sandeep Singh and Others, (2019) 6 SCC 453. A
writ petition was filed in the High Court by a
teacher occupying the post of Drawing Teacher, he
claimed that Drawing Teacher has been converted into
Trained Graduated Teacher (TGT) under Rule 9(5),
hence, the writ petitioners were also entitled to be
promoted from the day their juniors were promoted as
Trained Graduate Teachers. This Court examined the
77
Scheme of Rules, 2012 elaborately and following was
laid down in paragraphs 19 and 20:-
“19. The entire argument of the appellants
is based upon the expression used that C&V
teachers governed by the 1998 Rules shall
be “converted to TGT in relevant subject”.
The question is whether such C&V teachers
stand upgraded to the post of TGT though,
their promotion channel under the 1998
Rules was to the post of Master which
alone has been treated as TGT as defined
in Rule 2(h) of the 2012 Rules and in view
of express language of Rule 7 which
mandates that the appointment shall be
made to the post of TGT only in accordance
with the qualifications prescribed in the
2012 Rules.
20. The reading of the Rules would show
that C&V teachers are treated to be TGT so
as to avoid anomalous situation where the
C&V teachers after the commencement of the
2012 Rules would not be governed by any
set of Rules. Therefore, the expression
that such C&V teachers stand converted to
TGT is only to facilitate their service
conditions to be governed by the 2012
Rules rather than to upgrade the C&V
teachers as members of TGT cadre. The
feeder and the promotional cadre cannot be
treated on a par by virtue of the
expression used in Rule 9(5) of the 2012
Rules that the C&V teachers shall be
converted to TGT. Such conversion is only
for a limited purpose of the 2012 Rules
being extended to them and that such C&V
teachers do not become member of the
“cadre” eligible for promotion as
Elementary School Headmaster. Rule 9(5) of
the 2012 Rules does not use the word
78
“cadre”. Therefore, such teachers cannot
be treated to be part of TGT cadre. Such
interpretation is further supported by the
fact that C&V Teacher is a dying cadre and
no further recruitment is to be made in
these categories.”
70. This Court in the above judgment has held that
there is no automatic conversion, upgradation of C&V
Teachers into TGT and only to facilitate their
service conditions, they are to be governed by Rules,
2012.
71. We in the present case are concerned with a
selection, which was undertaken in pursuance of
advertisement No.6/2006 for 1983 posts of PTI, result
of which selection was declared on 10.04.2010.
Challenge was made to the said selection in various
writ petitions, which writ petitions were allowed by
learned Single Judge vide judgment dated 11.09.2012.
The selection dated 10.04.2010 was set aside, quashed
and the Commission was directed to hold a fresh
selection within a period of five months. When the
selection was set aside for the post of PTI, the
fresh selection ought to be held as per the
advertisement No.6/2006 and process of recruitment
79
initiated with the advertisement No.6/2006 has to be
brought to its logical end and for the purpose of
selection in pursuance of advertisement No.6/2006,
Rules, 2012 shall not come into way. We may also
notice Rule 20 of Rules, 2012, which is to the
following effect:-
“20. The Haryana State Education School
Cadre (Group-C) Service Rules, 1998,
amended from time to time in so far as
they are applicable to the posts included
in the Service are hereby repealed:
Provided that any order made or action
taken under the rules so repealed shall be
deemed to have been made or taken under
corresponding provisions of these rules.”
72. The selection on the post of PTI vide
advertisement No.6/2006 was under the statutory rules
then existing and selection process, which has been
initiated under erstwhile rules was to be continued
and had not to be scrapped as is clear from the
Scheme of Rules, 2012. In any view of the matter,
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
80
and completed under the orders of the High Court.
We, thus, reject the submission of the learned
counsel for the Commission and the State that fresh
selection cannot be held as per direction of the
learned Single Judge affirmed by the Division Bench.
We, however, are of the view that selection initiated
vide advertisement No.6 of 2006 has to be proceeded
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.
73. The learned Single Judge after quashing the
select list published on 11.04.2010 directed for
fresh selection on post of PTI. The learned Single
Judge, however, did not issue appropriate
consequential directions for holding the fresh
selection. There was no defect in the advertisement
dated 20.06.2006 and mode of selection as envisaged
by public notice dated 28.12.2006. The arbitrariness
crept thereafter from the stage of scrapping the
written test scheduled to take place on 20.07.2008.
81
The directions ought to have been issued to complete
the process from that stage i.e. 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. We
need to clarify that 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 No.6 of 2006 had right to
participate in selection as per criterion notified on
28.12.2006. The direction of learned Single Judge
needs modification and clarification to the above
effect.
74. We may also notice one more submission of the
learned counsel for the appellant. Learned counsel
for the appellant submits that in pursuance of
selection dated 10.04.2010, the appellants were
appointed and they have now continued for more than
nine years and at this juncture, it is not equitable
82
to throw out them from their posts. In the present
case, result of the selection dated 10.04.2010 was
published on 11.04.2010 and the writ petitions were
filed in May, 2010 itself, i.e., immediately.
Selection was set aside by learned Single Judge on
11.09.2012. The continuance of the appellants is
only by way of interim order. This Court has also
passed an order on 29.11.2013 for maintaining status
quo, which order has been continued till this date.
When the continuance of a person on a post is by
virtue of an interim order, the continuance is always
subject to outcome of the litigation. The
displacement of appellants from their posts is
inevitable consequence of upholding of the judgment
of the High Court. A Constitution Bench of this
Court in C. Channabasavaih Etc. Etc. Vs. State of
Mysore and Others, AIR 1965 SC 1293 has made
following observations in paragraph 9 in such a
situation, which is beneficial to record, is as
follows:-
“9. It is very unfortunate that these
persons should be uprooted after they had
been appointed but if equality and equal
83
protection before the law have any meaning
and if our public institutions are to
inspire that confidence which is expected
of them we would be failing in our duty if
we did not, even at the cost of
considerable inconvenience to Government
and the selected candidates do the right
thing………………………...”
75. In view of the foregoing discussions and
conclusions, we dispose of these appeals with the
following directions:
(i) 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.
(ii) The candidates who have been selected and
have worked on the post of PTI shall not be
asked to refund any of the salary and other
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benefits received by them as against their
working on the posts. No refund shall also be
asked from those candidates who after their
selection worked and retired from service.
(iii) The entire process be completed by the
Commission within a period of five months
from the date Commission starts working after
the present lockdown is over, which was the
time fixed by the learned Single Judge for
completing the process.
(iv) The costs imposed by the Division Bench in
paragraph 54 of the judgment of the High
Court are deleted except the costs imposed on
the Commission.
76. We, thus, while upholding the judgments of the
High Court, subject to the modifications as above,
dispose of these appeals.
77. Before we close, we record our appreciation to
learned counsel for the parties, who have rendered
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valuable assistance to the Court in deciding these
appeals.
......................J.
 ( ASHOK BHUSHAN )
......................J.
New Delhi, ( NAVIN SINHA )
April 08, 2020.