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2007 Supreme(Bom) 613
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(A.H. Joshi and R.C. Chavan, JJ.)
KALABAI PRAMOD RAUT - Petitioner.
Versus
SELECTION COMMITTEE, ANGANWADI SEWIKA AND HELPER, LAKHANDUR and others - Respondents.
W.P. No. 103 of 2007
Decided on 25-4-2007
Advocates appeared.
For petitioner: A. Z. Jibhkate.
For respondent Nos. 1 and 2 : Mrs. M. P. Munshi.
For respondent No.3: A. Z. Fulzele, Asstt. Government Pleader.
For respondent No.4: K. B. Ambilwade.
Headnote:Constitution of India, 1950 - Articles 14, 15 16 and 226-Marks obtained by candidate in viva voce-In selection process of Aganbadi Sewika- Challenged-Judicial review, selection of respondent No. 4 is quashed and set aside.-The allotment of full/excessive marks to respondent No. 4 and allotment of one out of 20 marks and consequential rejection of candidature of the petitioner and Smt. Dhanmala Bankar is of such a vast margin that it speaks for itself, and is, therefore, shocking, and it calls for interference at once. Court, therefore, holds that this is one such rare amongst the rarest cases where once what is apparent from record without sitting into judicial review as to whether the assessment of the candidates was done by the Selection Committee correctly, Court finds that the manner in which the assessment and allotment of marks has been done is grave and shocking. Court is satisfied that for reaching this conclusion, one does not have to sit in an appeal or a judicial review of the process of selection.
Constitution of India - Article 226 - Writ petition - Challenging selection process - Appointment of Anganwadi Sewika - Petitioner and one other candidate secured equal works - Respondents cannot be directed to appoint petitioner - Selection Committee directed to prefer one amongst two on basis of existing rules. - In view that there are two candidates having same marks, it would not be possible to issue a writ of mandamus directing that the petitioner alone should be appointed. High Court, therefore, leave it to the respondents- Selection Committee to consider the petitioner and other candidates having same merit ranking as per rules and prefer one amongst the two on the basis of existing rules, for appointment. It shall be needless to mention that while doing so, the petitioner having approached High Court should not be a matter of vengeance of her demerit.
Constitution of India - Article 226 - Writ petition - Challenging selection process - Impleadment of necessary party - Necessity of - Individual members of selection panel not included as party - No allegations of personal nature - Impleadment of not necessary. - High Court find that it is not a case where allegations of personal nature are made against a particular individual. In absence of allegations of personal nature, such members of Selection Committee being arrayed is not necessary. It is a case where all the members of the Selection Committee have been blamed for grating marks to the respondent No. 4 in concurrence and congruence to bring her to the level of passing one and the same modus operandi of giving only one mark to meritorious candidates to suppress and negative their chances. This has been alleged is legal malice and it can very well be defended by the respondent No. 1 through Ex-officio Secretary, which has not been done. Moreover, while High Court is quashing the selection of respondent No. 4, she has been heard. The respondent No. 1 through its Member-Secretary is also heard. The Court has not passed strictures against any particular individual. In their official capacity, members of Selection Committee are duly served through the respondent No. 1. Therefore, High Court do not find that there is infirmity in the petition on this count.
A. H. JOSHI, J. :- Parties were put to notice for final disposal. After notice by this Court, contesting respondents have filed their respective affidavits. In view of this, Rule. Rule is made returnable forthwith and is called for final disposal by consent.
2. Heard.
3. This is a simple case which proceeds on certain admitted facts, namely :-
(a)The selection process is based on allotment of marks on the basis of pre-decided norms, such as educational qualification, experience, place of residence, caste or category, etc. These marks are 80 in number, and are to be objectively allotted.
(b) Twenty marks have been reserved for viva voce, where in the personal interview, where marks would be allotted by each member or the Selection Panel, and their average would be the quantum.
(c) Consolidated sheet of allotment of marks shows over-writing suggesting that in the educational qualification column, initially, respondent No.4 was allotted 15 marks, and 15 marks for her falling in the SC/ST category, the total whereof was 30.
(d) The document on record (page 21) reveals that respondent No. 4's marks under the Head "Educational Qualification" were corrected to 20 by overwriting, and total "30" was corrected to 35 in the same manner.
(e) Thus, in the present case, respondent No.4 was shown to have been allotted 35 marks out of 80 marks.
(f) Insofar as the petitioner is concerned, she was allotted 10 marks towards educational qualification, 15 towards her class or category, 15 towards experience being more than one year and 10 marks towards professional training, i.e., Certificate Course for kindergarten. The total marks, the petitioner was allotted, are 50 out of 80 marks.
(g) It is seen that in the viva voce, the petitioner was granted 1 mark each by the Chairperson as well as by all other members (four) and the average thereof was naturally one out of twenty. Petitioner, thus, scored 51 marks in total.
(h) The respondent No.4, who was shown to have scored 35 marks, was allotted full 20 out of 20 marks available for viva voce. The average thereof naturally became 20 and adding 20 marks to 35 allotted to her on the basis of objective analysis of her record, she was shown to have scored 15 more marks and she was selected and appointed.
4. This Court is fully alive and conscious towards limitations of judicial review in the matters of scrutiny of viva voce performance, result thereof and assessment by the persons sitting to adjudge the· capacity and ability of candidates.
5. On the facts of the case, we are faced with the situation where, on one hand, the objective assessment is of vast distinction and in the viva voce, the candidate, who has been selected, has been given highest/full marks available under the head of viva voce while two candidates who had highest, i.e. 50 out of 80 marks, namely the petitioner and one Dhanmala Bankar both were awarded only one out of 20 marks for viva voce.
6. The reply to the petition is filed for and on behalf of respondent No.1Member-Secretary of Selection Committee, by Shri Chhabilal Ramchandra Ganvir, who is the Child Development Programme Officer, who had in his official capacity participated for conducting the viva voce. He has allotted marks which have been recorded in column No.8. As we see from the contents of petition, in paragraph No.5, the petitioner has averred the nature of questions she was asked and she also asserts that she has replied those correctly. While answering para 5, the respondent has averred which should better be referred by quoting ad-verbatim as below :-
“5. As to Para No.5:- The averments made in this para are ground disputed question of facts in which the writ jurisdiction cannot be involved the petitioner has been granted marks on the basis of his performance and this is a subjective procedure The marks given during the personal interview are given by the persons who have interviewed the candidates. And it is their prerogative to allot marks as they deem fi
