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2016 Supreme(Pat) 624
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, I.A. ANSARI, JJ.
Shivanand Son of Sone Lal Baitha & Anr. - Appellants
Versus
Development Commissioner-Cum-Chairman of Board of Director & Ors. - Respondents
Letters Patent Appeal No. 468 of 2016 In Civil Writ Jurisdiction Case No. 17624 of 2015
Decided On : 18-10-2016
Advocate Appeared:
For the Appellants : Mr. Y. V. Giri, Mr. Uday Chand Prasad
For the Respondents: Mr. Tej Bahadur Singh, Mr. Brisketu Sharan Pandey
Unreasonable and arbitrary decisions in a selection process, without prescribed minimum marks, violate constitutional provisions and are subject to judicial review.
Headnote:
Selection Process - Public Sector Undertaking - Bihar State Building Construction Corporation Limited - Clause 9 of the Advertisement - No minimum qualifying marks for interview - Appellants declared unsuccessful based on interview performance - Unreasonable and arbitrary decision - Violation of Articles 14 and 16 of the Constitution of India - Supreme Court's decisions in K. Manjusree Vs. State of Andhra Pradesh and Another, Hemani Malhotra Vs. High Court of Delhi, and Barot Vijaykumar Balakrishnan and Others Vs. Modh Vinaykumar Dasrathlal and Others
Fact of the Case:
The appellants sought direction to declare them successful for appointment as Deputy General Manager (Technical) in Bihar State Building Construction Corporation Limited (BSBCCL) based on a selection process. They were declared unsuccessful despite fulfilling the criteria and clearing the written and viva voce tests.
Finding of the Court:
The court found the decision to declare the appellants unsuccessful based on their interview performance without prescribed minimum marks to be unreasonable and arbitrary, violating Articles 14 and 16 of the Constitution of India.
Issues: The main issue was whether the appellants could be declared unsuccessful based on their interview performance when no minimum marks were prescribed for the interview.
Ratio Decidendi: The court held that the decision to declare the appellants unsuccessful based on interview performance without prescribed minimum marks was arbitrary and violated constitutional provisions. It cited Supreme Court decisions in K. Manjusree Vs. State of Andhra Pradesh and Another, Hemani Malhotra Vs. High Court of Delhi, and Barot Vijaykumar Balakrishnan and Others Vs. Modh Vinaykumar Dasrathlal and Others to support its decision.
Final Decision: The court allowed the appeal, set aside the judgment and order under appeal, and directed the Managing Director of BSBCCL to proceed accordingly. No order as to costs was made.
Chakradhari Sharan Singh, J.
This appeal, under Clause X of the Letters Patent of this Court, arises out of judgment and order, dated 09.02.2016, passed by a learned single Judge of this Court, in CWJC No. 17624 of 2015, whereby the writ application, filed by the present appellants, under Article 226 of the Constitution of India, has been dismissed.
2. The appellants had sought for a direction in the said writ proceeding to the respondents to declare them successful for their appointment on the post of Deputy General Manager (Technical), in Bihar State Building Construction Corporation Limited (in short, ‘BSBCCL’), on the basis of a process of selection held pursuant to an advertisement published on 04.05.2015.
3. Short point, which the present appeal involves in the present appeal, is, if in the aprocess selection to a post in a Public Sector Undertaking, no minimum qualifying marks for interview is prescribed in the Advertisement nor declaration prescribing minimum qualifying marks for interview is made prior to the date of interview, would it be permissible for the selection body or the appointing authority to declare an aspirant, for a post, unsuccessful, on the basis of his performance at the interview?
4. In order to appreciate the issue involved in the present appeal, as noted above, with reference to the grievance of these appellants, it would be appropriate to take note of relevant admitted facts, which are as under:-
(i) The BSBCCL, Patna, which is a Government of Bihar Undertaking, came out with an advertisement, on 04.05.2015, inviting applications for selection/appointment against 5 (five) posts of Deputy General Manager (Technical) on deputation/contractual basis.
(ii) From the advertisement, in question, it appears that several other posts, namely, General Manager (Technical), Assistant General Manager (Technical), Junior Engineer (Civil) and others posts were also advertised. Out of 5 (five) posts of Deputy General Manager (Technical), 2 (two) posts were kept reserved for Extremely Backward Castes candidates and 1 (one) post for Schedule Caste candidates.
(iii) The appellant No. 1 belongs to Schedule Caste category; whereas, the appellant No. 2 belong to Extremely Backward Castes category. Both of them fulfilled the criteria prescribed in the advertisement inviting applications, and had applied in response to the said advertisement.
(iv) Clause 9 of the said advertisement is crucial for the adjudication of the present appeal, which reads thus:-
“9. Only shortlisted candidates will be called for written test/interview. Selection for any post will be based on written test and interview. Only those candidates who would secured minimum 30 % marks in written test would be called for interview.” (Emphasis is Supplied)
(v) For the post, in question, upon scrutiny of applications, 22 candidates, including these two appellants, were called for written test. The appellants are the only two persons, who could qualify in the written test and they were, accordingly, called for interview.
(vi) The appellants were, accordingly, called for interview before a Board, consisting of 11 (eleven) members. By way of Annexure-8 to reply on behalf of the appellants to the counter affidavit filed on behalf of the BSBCCL, the appellants brought on record the details of marks scored by respective candidates in the written test and viva voce, which they had obtained under the Right to Information Act.
(vii) From the said chart (Annexure-8), it appears that appellant No. 1 had secured 22.50 marks and appellant No. 2 had secured 18.50 marks, out of total marks of 50, in the written test. Both of them scored 05 marks each, out of 30, in the Interview.
(viii) We have also noticed from the said chart that no other candidate had secured more than 5 marks in the written test, except these appellants. It, further, appears that appellant No. 1 secured 09 marks and appellant No. 2, 08 marks, out of total 10 marks, against educational qualification.
(ix)
