RAMJIT SINGH KARDAM & ORS. versus SANJEEV KUMAR & ORS.

[2020] 7 S.C.R.

RAMJIT SINGH KARDAM & ORS.

SANJEEV KUMAR & ORS.

(Civil Appeal No. 2103 of 2020)

APRIL 08, 2020

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Service Law: Selection process – Criteria for selection –Challenged by candidates – Rule of estoppel – Applicability of – Itis general preposition that candidate, who participates in aCselection without demur taking calculated chance to get selectedcannot turn around and challenge the criteria of selection and theconstitution of the selection committee – However, in the instantcase, Commission had not published any criteria on the basis ofwhich candidates were to be subjected for selection process andDthe candidates participated in the selection without knowing thecriteria of selection – In such situation, they cannot be shut outfrom challenging the process of selection when ultimately they cameto know that Commission step by step had diluted the merit inselection – Further when the written examination as notified earlierwas scrapped and every eligible candidate was called for interviewEgiving go bye to fair and reasonable process for shortlisting thecandidates for interview, that too only by Chairman of theCommission whereas decision regarding criteria of selection was tobe taken by Commission, the candidates have every right to challengethe entire selection process so conducted – Rule of estoppel.F

Service Law: Selection process – Decision to cancel thewritten examination and to call the candidates for interview eighttimes number of vacancies on minimum percentage of marks as fixedtherein and subsequent decision to call all the eligible candidatesfor interview – Propriety of – Held: These decisions were arbitraryGdecision to change the selection criteria which have effect ofdowngrading the merit in the selection – The present is case wherechange in criteria was affected and altered arbitrarily with the objectof down-grading and not up-grading the standards of selection.

Service Law: Haryana Staff Selection Commission – SelectionHfor the post of PTI – Criteria for selection – Power vested in

Commission to fix the criteria for selection – By notification dated28.07.1998, the Commission was empowered to devise the mode ofselection and fix the criteria for selection of post for whichrequisition is sent to it by Department or an office, as it may deemappropriate – As per notification dated 21.06.2007, the Commissionis to consist of nine members including the Chairman – The selectionon various posts was to be conducted as per the criteria fixed bythe Commission – There are no separate statutory rules providingfor criteria for recruitment for different posts including the post ofPTI.

Service Law: Haryana Staff Selection Commission – Multi-member body – Decisions taken by the Chairman – Binding effect –Held: The statutory notifications when entrust the Commission todevise the mode of selection and fix the criteria and the Commissionbeing multi-member body, Chairman alone was not competent toalter the mode of selection and the criteria, which was fixed andpublished for conducting the selection for the post of PTI – TheCommission being multi-member body, all decisions pertaining tomode of selection and criteria was to be taken by the Commissionitself, there being no rules or resolution delegating the said powerto Chairman or any other member – The decision of not holdingwritten examination, decision to screen on the basis of eight timesof vacancies and percentage of marks and decision to call alleligible candidates, were all decisions taken by the Chairman himself,which decisions cannot be said to be decisions of the Commission.Service Law – Selection process – Posts of PTI – Staff SelectionCommission, multi-member body – Decision of Chairman of theCommission to change selection process i.e. not to hold the writtenexamination due to “administrative reasons” – As per theadvertisement for the selection of posts of PTI, the Commission hadpublished the criteria for selection on 28.12.2006 which wasimplemented also– The decision for not holding the writtenexamination and steps taken consequent thereto were all arbitrarydecisions, unsustainable in law – Power to device the mode ofselection and fix the criteria for selection was entrusted on theCommission to further the object of selection on merit to fill up postin State in consonance with the provisions of Arts.14 and 16 of theConstitution of India – The Commission being recruiting body

CDE

Aabdicated its obligation of screening out the best candidates – Whenthe alteration of criteria has been made, which has obviouslyaffected the merit selection, the allegations which have been madein the writ petition against the Commission in conducting theselection are allegations of malice-in-law and not malice-in-fact–The observation of the High Court that “it cannot be mere co-Bincidence that 90% of the meritorious candidates in academicsperformed so poorly in viva voce that they could not secure even10 marks out of the 30 marks or that the brilliance got configuratedonly in the average candidates possessing bare eligibility” whereinferences drawn from result sheet re-affirmed the allegations ofCmalice-in-law.

Service law: Selection process – High Court’s direction toquash the selection made by the Selection Commission and to holdfresh selection – Held: In the instant case, the directions ought tohave been issued to complete the process from the stage of holdingDthe written test – All the candidates who had applied for the post ofPTI including those selected, ought to have been permitted to takethe written test –There was no requirement of fresh advertisementand inviting fresh applications –All the applicants who applied inresponse to advertisement had right to participate in selection asper criterion notified on 28.12.2006 –Thus, High Court’s directionEto quash the selection made by the Selection Commission and tohold fresh selection is modified – The Commission shall concludethe entire process initiated by the advertisement as per criterionnotified on 28.12.2006 – All the applicants who had submittedapplications in response to the advertisement including those whoFwere selected shall be permitted to participate in the fresh selection.

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

Disposing of the appeals, the Court

HELD: 1. By notification dated 28.07.1998, the Commissionwas empowered to devise the mode of selection and fix the criteriafor selection of post for which requisition is sent to it by aH

Department or an office, as it may deem appropriate. As pernotification dated 21.06.2007, the Commission shall consist ofnine members including the Chairman. The selection on variousposts was to be conducted as per the criteria fixed by theCommission. There are no separate statutory rules providingfor criteria for recruitment for different posts including the postof PTI. [Paras 33, 34][1121-C-D][1122-A-B]

2.1 The preposition that candidate, who participates in aselection without demur taking calculated chance to getselected cannot turn around and challenge the criteria of selectionand the constitution of the selection committee is well settled. Inthe instant case, both appellants and the respondents hadsubmitted applications in pursuance of advertisement dated28.07.2006 which provided that the Commission may shortlistthe candidates for interview by holding written examination oron the basis of rational criteria to be adopted by the Commission.The Commission on 28.12.2006 published the criteria for callingthe candidates for interview. Notice dated 28.12.2006 providedthat written examination shall be held for post of PTI on21.01.2007, on 100 objective type multiple choice questions, eachquestion carrying two marks. The notification also prescribedthe minimum qualifying marks- 50% for General category, SCBC and ESM 45% and 25% marks was assigned to the viva voce.The above criteria was implemented and written examination wasconducted on 21.01.2007, which examination was cancelled citingcomplaints regarding malpractices in the written examination.Further notice dated 11.06.2008 was published fixing 20.07.2008for written examination as per criteria earlier notified. Beforethe above examination could take place, by another public notice,it was cancelled. Another public notice dated 11.07.2008 waspublished where Commission decided to shortlist eight timesthe candidates of the advertised post with minimum weightagesecured in each category. The said shortlisting was also givenup by notice dated 31.07.2009 when it was decided to call alleligible candidates for interview. Commission did not publish anycriteria or marks on the basis of which interview was to be held.The criteria, which was published by the Commission on28.12.2006, 11.06.2008 and 11.07.2008 were given up step bystep and no criteria was published for interview. When

ACommission had not published any criteria on the basis of whichcandidates were going to be subjected for selection process andthe candidates participated in the selection without knowing thecriteria of selection, they cannot be shut out from challengingthe process of selection when ultimately they came to know thatCommission step by step has diluted the merit in selection.BFurther when the written examination as notified earlier wasscrapped and every eligible candidate was called for interviewgiving go bye to fair and reasonable process for shortlistingthe candidates for interview, that too only by Chairman of theCommission whereas decision regarding criteria of selection hasCto be taken by Commission, the candidates have every right tochallenge the entire selection process so conducted. [Paras 37,39][1122-F][1124-A-D]Madan Lal and Others v. State of J&K and Others(1995) 3 SCC 486 : [1995] 1 SCR 908; K.A. NagamaniDv. Indian Airlines and Others (2009) 5 SCC 515 : [2009]5 SCR 89; Manish Kumar Shahi v. State of Bihar andOthers (2010) 12 SCC 576; Madras Institute ofDevelopment Studies and Another v. K.Sivasubramaniyan and Others (2016) 1 SCC 454 :[2015] 14 SCR 276; Ashok Kumar and Another v. StateEof Bihar and Others (2017) 4 SCC 357 : [2016] 8 SCR815; Raj Kumar and Others v. Shakti Raj and Others(1997) 9 SCC 527 : [1997] 1 SCR 1159; Bishnu Biswasand Others v. Union of India and Others (2014) 5 SCC774 : [2014] 4 SCR 625 – referred to.F2.2 The Division Bench of the High Court is right in itsconclusion that the selection criteria, which saw the light of theday along with declaration of the selection result could be assailedby the unsuccessful candidates only after it was published.Similarly, selection process which was notified was never followedGand the selection criteria which was followed was never notifiedtill the declaration of final result, hence, the writ petitioners cannotbe estopped from challenging the selection. The writ petitionscould not have been thrown on the ground of estoppel. [Para41][1126-B-C]

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

3.1 On 30.06.2008, type note by the Superintendent(Recruitment-I) was prepared mentioning that the Chairman hadordered that written test for the posts of DPE, Art and CraftTeacher and PTI, Education Department, Haryana, scheduled totake place, may be “cancelled on administrative reasons”. Thesaid note was approved by the Chairman and he also approvedthe notice to be published for cancellation of the proposed writtenexamination. Neither the note nor the order of Chairmanapproving the note give any indication of “administrative reasons”for cancellation of the examination. Another important changewhich was effected in the criteria for selection was the notificationwith the approval of note dated 10.07.2008 which mentioned thatthe worthy Chairman had issued oral direction that in respect ofthe advertisement, candidates are required to be short-listed eighttimes of the vacancy and called for interview. Short-listing was tobe done on the percentage of the marks of the candidates withminimum percentage mentioned therein. The above criteria wasalso given up when another note dated 31.07.2008 was approvedby the Chairman where the Chairman decided that all the eligiblecandidates be called for interview changing the earlier criteria.The sequence of events indicates that in accordance with the“special instruction”, the Commission decided the criteria forcalling the candidates for the selection as holding of writtenexamination of 200 marks and interview for 25 marks which wasthe perfect criteria looking to the number of the candidates i.e.20,836 who had applied in pursuance of the advertisement forthe post of PTI. The criteria was implemented by holding writtentest which was cancelled due to some complaints. The writtentest was again notified which was withdrawn, the earlier criterionwas given go bye by another notification. This indicates thatthe standard on which candidates are to be screened for selectionwas downgraded by Chairman of his own. When the number ofcandidates who applied against certain posts are enormously large,short-listing has always been treated as an accepted mode to

[2020] 7 S.C.R.

Acorrectly value the work and merit of the candidate.[Paras 44, 45][1129-B-H]

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

DTej Prakash Pathak and Others v. Rajasthan HighCourt and Others (2013) 4 SCC 540 – referred to.

3.3 The notifications issued under proviso to Article 309 ofthe Constitution of India specifically provides that theCommission shall devise the mode of selection and fix the criteriaEfor selection of posts. The Commission is multi-member body,which acts collectively. The Commission in the counter affidavitsfiled before High Court or this Court has not brought any rulesor resolution of the Commission by which power of theCommission to devise the mode of selection and fix the criteriahave been delegated to any other member including theFChairman. When there are no statutory rules regarding allocationof business of the Commission or delegating its business tomembers or Committee, the Commission could very well by itsresolution devise its own mode of exercising such power orfunction. [Paras 49, 50][1131-F-H][1132-B]

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

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

3.4 The Division Bench of the High Court after pursuingthe original records, which was summoned by it from theCommission has returned finding that the decision of theCommission dated 30.06.2008, 11.07.2008 as well as 31.07.2008were all taken by the Chairman alone, which was proved fromoriginal records containing the relevant notes and approval bythe Chairman. The alteration of criteria, thus, was sole handi-work of the Chairman, which decision was not the decision of theCommission. The criteria for conducting selection for the post ofPTI as was published on 28.12.2006 was altered by the Chairmanstep by step completely giving go bye to the method of meritselection. The decision of Chairman of the Commission dated30.06.2008 not to hold the written examination was claimed tohave been taken due to “administrative reasons”, but what were“administrative reasons” were never disclosed or brought onrecord by the Commission. The decision to change the selectionprocess as notified on 28.06.2006 was major decision not onlyaffecting the applicants who had to participate in the selection onthe basis of criteria as notified on 28.12.2006 but had adverseeffect on merit selection as devised for 1983 posts of PTI.[Paras 51, 54][1132-E-G][11345-C-E]

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

5. The Commission being multi-member body, alldecisions pertaining to mode of selection and criteria was to betaken by the Commission itself, there being no rules or resolutiondelegating the said power to Chairman or any other member.The decision of not holding written examination dated 30.06.2008,decision to screen on the basis of eight times of vacancies andpercentage of marks dated 11.07.2008 and decision dated31.07.2008 to call all eligible candidates, were all decisions takenby the Chairman himself, which decisions cannot be said to be

Adecisions of the Commission. The decision dated 03.08.2008 wasnever taken on 03.08.2008 as claimed and the said resolutionwas prepared subsequent to declaration of the result when theSingle Judge asked for criteria of the selection, which wasproduced in separate loose sheet signed by all members.[Para 58][1135-G-H; 1136-B]B

Ratnagiri Gas and Power Private Limited v. RDSProjects Limited and Others (2013) 1 SCC 524 : [2012]9 SCR 690 – referred to.

6.1 The present is not case of malice in fact. The “maliceCin fact” and “malice in law” are two well-known concepts in law.The malice in law has been dealt as “something done withoutlawful excuse”. The malice in law is also mala fide exercise ofpower, exercise of statutory power for purposes foreign to thosefor which it is in law intended. In the present case, the power todevice the mode of selection and fix the criteria for selection wasDentrusted on the Commission to further the object of selectionon merit to fill up post in State in consonance with the provisionsof Articles 14 and 16 of the Constitution of India. When thealteration of criteria has been made, which has obviously affectedthe merit selection, the allegations which have been made in theEwrit petition against the Commission in conducting the selectionare allegations of malice-in-law and not malice-in-fact. [Paras 61,62][1138-F; 1140-E-G]

6.2 The High Court had summoned the original records ofthe Commission including the marks awarded to the candidatesFboth on basic qualification as well as essential qualification aswell as viva voce. The observation of the High Court that “itcannot be mere co-incidence that 90% of the meritoriouscandidates in academics performed so poorly in viva voce thatthey could not secure even 10 marks out of the 30 marks or thatGthe brilliance got configurated only in the average candidatespossessing bare eligibility” where inferences drawn from resultsheet and re-affirms the allegations of malice-in-law. Theinferences drawn by the High Court, thus, cannot be said to beunfounded nor are based on no material or perverse so as to call

for any interference by this Court in these appeals. There is nosubstance in the submission that since no specific allegationsagainst Chairman and members have been made and they beingnot impleaded as the parties, the allegations in the writ petitionregarding allocation of marks in viva voce cannot be looked intoby the High Court. [Para 63][1140-H; 1141-A-C]

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

7. When the selection for 1983 posts of PTI was set asideand the High Court directed to hold fresh selection, the selectionprocess was to be continued and completed under the orders ofthe High Court. However, selection initiated by advertisementhas to proceed further from the stage the criterion was arbitrarilychanged by the Chairman. The completion of selection has to beonly from amongst the candidates who had applied against postof PTI, including those who were selected. All the candidateswho had applied for the post of PTI including those selected,ought to be permitted to take the written test. In the facts of thepresent case, there was no requirement of fresh advertisementand inviting fresh applications. In the event fresh applicationsare called, large number of applicants who participated in theselection would have become over age. All the applicants whohad applied in response to advertisement had right to participatein selection as per criterion notified on 28.12.2006. The directionof Single Judge is modified to the above effect. The Commissionshall conclude the entire selection process initiated by theadvertisement No.6 of 2006 as per criterion notified on 28.12.2006i.e. holding objective type written test of 200 marks and vivavoce of 25 marks. All the applicants who had submittedapplications in response to the above advertisement includingthose who were selected shall be permitted to participate in thefresh selection as directed. [Paras 72, 73, 75][1145-D-F; 1145-H; 1146-A-B; 1146-G-H; 1147-A]

C. Channabasavaih Etc. Etc. v. State of Mysore andOthers AIR 1965 SC 1293 : [1965] SCR 360 – referredto.

[2020] 7 S.C.R.

ACase Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2103of 2020.

From the Judgment and Order dated 30.09.2013 of the High Courtof Punjab and Haryana at Chandigarh in L.P.A. No. 1594 of 2012.FWith

Civil Appeal Nos. 2104, 2105, 2107, 2106, 2108, 2164-2166, 2168-2169, 2167 of 2020.

Anil Grover, AAG, Kapil Sibal, Manjeet Singh Dalal, ManojSwarup, Narender Hooda, Sr. Advs., Devashish Bharuka, Ms. Sarvshree,GRavi Bharuka, Pradeep Dahiya, Jusine George, Ms. Srishti Agrawal,Sanjiv Goel, Ms. Nandita Hooda, Jay Kishor Singh, Nirmal KumarPandey, Mohit Raj, Ravindra Keshavrao Adsure, Mirtunjay Kumar Singh,Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Madhu Gupta, Ms. MamtaUpadhyaya, Kamal Mohan Gupta, Sunny Choudhary, Mrs. Shiel Sethi,HHarkesh Singh, Sanjay Rathee, Ms. Beena, Amit Chahal, Suryaveer

Singh, Mrs. Mahima Singh, Satyendra Kumar, Ms. Ruchi Kohli, HarikeshSingh, R. Duatan, Dinesh Kumar Garg, Satish Kumar, Mukesh K. Verma,Ramesh Goyal, Prakash Yadav, Ms. Namrata Bhatnagar, Anis AhmedKhan, Deepak Thukral, Satish Kumar, Dr. Monika Gusain, D. Goyal,Gautam Sharma, Abhishek Kumar, Tushar Sharma, Ms. Anindita Pujari,Aditya Singh, Shubham Singh, Pankaj Yadav, Sanjay Kumar Visen, BharatSingh, Abhijeet Pandore, Mahipal Khagnwal, Amit Pawan, SantoshMishra, Ramesh Goyal, Arihant Goel, Neelmani Pant, Ms. VidishaSwarup, Rakesh Kumar, Akshay Verma, Saurav Arora, Pawan, Advs.for the appearing parties.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J.

1. These appeals have been filed against the common judgmentdated 30.09.2013 of High Court of Punjab and Haryana dismissing LPAfiled by the appellants affirming the judgment of learned Single Judgedated 11.09.2012 by which the Selection dated 10.04.2010 selectingappellants on the post of Physical Training Instructor (PTI) was setaside. All the appeals having been filed against the common judgmentinvolving common facts and questions of law, for deciding the batch ofappeals, 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 (hereinafterreferred to as Commission) vide Advertisement No.6 of2006 dated 20.07.2006 invited applications for various postsenumerated in different category numbers in theAdvertisement. Under category No.23, 1,983 posts of PTI(Physical Training Instructor) were advertised. TheAdvertisement mentioned the educational qualifications forthe post. Advertisement contained special instruction infollowing words: -

“SPECIAL INSTRUCTIONS:

The prescribed essential qualification does not entitlea candidate to be called for interview. TheCommission may short list the candidates for

Ainterview by holding written examination or on thebasis of rational criteria to be adopted by theCommission. The decision of the Commission in allmatters relating to acceptance or rejection of anapplication, eligibility/suitability of the candidates,mode of and criteria for selection etc. will be finalBand binding on the candidates. No inquiry orcorrespondence will be entertained in this regard.”

2.2.In pursuance of advertisement for the posts of PTI, 20,836applications were received by the Commission.Thenotification dated 28.12.2006 was published by theCCommission to the effect that the Commission has decidedto hold the written examination on 21.01.2007. Notificationfurther mentioned there shall be 100 objective type MultipleChoice Questions, 60 Questions relating to AcademicKnowledge of the respective subject for which candidateDis appearing in the test and 40 Questions related to GeneralKnowledge, General English and Hindi upto Matric Standard.Each question was to carry two marks. The candidateswere required to secure minimum qualifying marks in writtentest i.e. 50% for General Category and 45% for SC/BC.Notification further mentioned that Viva-voice will be of 25Emarks. The notification further provided that candidatesequal to three times of the vacancies will be called forinterview 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 CommissionFthat due to several complaints/reports with regard tomalpractices and cheating committed in written examinationheld on 21.01.2007, Commission has decided to cancel theaforesaid examination.

2.4.Another notice dated 11.06.2008 was issued by theGCommission re-notifying the written examination for the PTIon 20.07.2008. However, before the written examinationcould take place on 20.07.2008, another notice dated30.06.2008 was issued by the Commission cancelling thewritten examination to be held on 20.07.2008. AnotherHnotice dated 11.07.2008 was published by the Commission

to shortlist the candidates for interview. The noticementioned that keeping in view the large number ofapplications, Commission has decided to shortlist eight timescandidates of the advertised post in the respective categoryfor interview on the basis of essential academic advertisedqualification. Notice also mentioned the minimum weightedscore of each category.

2.5.On 18.07.2008, the interview schedule was published bythe Commission which provided that Interview was notifiedfrom 02.09.2008 to 17.10.2008. 15,582 candidates appearedin the interview. One member of the Commission and oneexpert member headed each Interview Committee from Ato H. Although the interview was completed in the year2008 itself, the Commission could declare the result of theselection after one and half years only on 10.04.2010 whichwas published on 11.04.2010. At the end of the result aspublished in the newspaper, criteria adopted for selectionwas also mentioned to the following effect: -

“CRITERIA ADOPTED FOR SELECTION:

The criteria adopted by the Commission for makingselection is given below: -

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 ofwrit petitions were filed in the Punjab and Haryana High Court includingCWP No.15656 of 2010, Sanjeev Kumar and others versus State ofHaryana and others. The writ petitioners before filing writ petitions hadobtained information under Right to Information Act details of whichinformation were mentioned in the writ petition. Various grounds weretaken in the writ petition to challenge the selection. The writ petitionerspleaded in the writ petition that some of the candidates have been awardedmore than 25 marks in viva-voice. Further, some of the candidates havebeen selected and appointed who did not possess the requisite qualificationof certificate in Physical Education conducted by Haryana Education

ADepartment or an equivalent qualification recognized by HaryanaEducation Department. The petitioners further pleaded that once thecriteria was laid down by the Commission, the same was required to befollowed strictly while making the selection and it was not proper tochange the criteria. The petitioners pleaded that criteria has been changedby the respondent authority to get the desired result and in order to bringBthe candidates within the zone of selection in order to grant them unduebenefits for the reasons best known to the respondent authorities.

4. The Petitioner No.1 of CWP No.15656 of 2010 pleaded thatout of 62 Candidates who have been appointed in district Yamuna Nagar,61 are less meritorious as compared to petitioner No.1. The petitionerCNo.1 although secured 41.68 marks in academic qualifications but couldget only 8 marks in the interview. Petitioner further pleaded that all otherpetitioners secured good marks in academic qualifications but theyreceived less marks in viva-voice due to which they could not be includedin the Select list.D

5. On an application given under RTI asking for copy of thecriteria, it was only on 17.06.2010 the criteria was supplied. The writpetitioners further pleaded that authorities while making selection neitheradopted any rationale criteria nor selected the candidates on the basis ofmerit. The criteria was changed from time to time in order to selectEsome favourites. Entire selection appears to be fraud played upon thegeneral public. 25 marks were mentioned for viva-voice but when theresult was finalized the candidates were awarded marks more than 25marks. Paragraph 51 of the W.P.No.15656 of 2010 enumerated the mainpoints involved in the writ petition.F“51. That the main law points involved in the writ petitionare: -

i)Whether the respondent – authorities have adopted pickand choose policy while selecting the private respondents?

ii) Whether the marks allocated for the interview as per theGadvertisement could be changed subsequently after thecommencement of the selection procedure at the whims ofthe respondent authorities?

iii) Whether any rational criteria was adopted by therespondent – authorities while awarding the marks forHthe viva-voce?

iv) Whether the marks for the viva-voice were required to beAbifurcated under various heads?

v)Whether the persons who did not possess even the requisiteeducational qualification could be selected for the post?

vi) Whether the selection conducted by the respondent –Bauthorities is fair transparent and sustainable in the eyesof law?

vii) Whether while making the selection Articles 14 and 16 ofthe Constitution of India have been violated?

viii) Whether the action of the respondent-authorities isarbitrary, discriminatory and unsustainable in the eyesof law?

ix) Whether the petitioners should be allowed to suffer forno fault on their part especially when the petitionerspossess better academic record as compared to the selectedcandidates?”

6. In the writ petition No.15656 of 2010, following prayers weremade:-

i.relevant records of the case be summoned;

ii.to issue writ in the nature of Certiorari quashing theselection list Annexure P-9 dated 10.04.2010 and to issuea writ in the nature of Mandamus directing the respondentauthorities to select and appoint the petitioners as PTI’sand it is further prayed that during the pendency of thewrit petition the respondents may kindly be restrained fromappointing the selected candidates to the posts of PTI’s.

iii. To issue any other appropriate writ, order or direction asthis Hon’ble Court may deem fir and proper in the factsand circumstances of the present case;

iv. To dispense with from filing the certified copies of theAnnexures;

v.Prior notices to the respondents may kindly be dispensedwith;

1112SUPREME COURT REPORTS

Avi. To allow the petitioners to file photostat copies of theAnnexures;

vii. Costs of the writ petition be awarded in favour of thepetitioners and against the respondents,

Any other order which this Hon’ble Court may deem fir mayBkindly be passed.”

7. The selected candidates were also subsequently impleaded asparties in most of the writ petitions and repeated efforts were made toserve them. Hundreds of selected candidates were duly served. Writtenstatements were also filed by selected candidates in the writ petitions.CThe High Court noticed that several respondents have not been serveddue to various reasons. Rest of candidates were served throughsubstituted service for which public notice was published in the daily“The Tribune” on 21.03.2012.

8. counter affidavit was also filed by the Commission opposingDthe writ petition. Learned Single Judge had also called for the originalrecord from the Commission which were produced by the Commissionbefore the Court.

9. Learned Single Judge after hearing the counsel for the partiesand after perusing the record allowed all the writ petitions by judgmentEand order dated 11.09.2012. Operative portion of the judgment of thelearned Single Judge is as follows: -

“...These writ petitions are thus allowed. The purportedselection made by the Haryana Staff Selection Commission inpursuance to the advertisement No.6/2006, result whereof wasFpublished on 11.04.2010 relating to category No.23 for theposts of PTIs, is hereby quashed. direction is issued to theHaryana Staff Selection Commission to hold fresh selection,in accordance with law, within period of five months fromthe date of receipt of certified copy of this order.

GPhotocopies of the original noting files produced inCourt as also the purported criteria laid down by theCommission dated 03.08.2008 have been got prepared, keptin sealed cover and placed on the records of CWP No.15656of 2010 to be opened only on Court orders. Produced originalrecords be handed over to Mr. Harish Rathee, learned SeniorHDeputy Advocate General, Haryana.

(AUGUSTINE GEORGE MASH)

JUDGE11.09.2012"

10. LPA No.1594 of 2012 and several other LPAs were filedbefore the Division Bench challenging the judgment dated 11.09.2012.Apart from LPAs filed by selected candidates, few of the LPAs werealso filed by some of the writ petitioners they being partly dissatisfied bythe order of the Single Judge as the issue of ineligibility and disqualificationof selected candidates expressly raised by them have not been gone intoby learned Single Judge.

11. The State of Haryana as well as Haryana Staff SelectionCommission had also filed LPA challenging the judgment of the learnedSingle Judge. All the LPAs were heard and decided by the DivisionBench vide its judgment dated 30.09.2013. The Division Bench upheldthe order of learned Single Judge. Operative portion of the judgment ofthe Division Bench dated 30.09.2013 is as follows: -

“54) For the reasons afore-stated, we uphold the decision ofthe learned Single Judge and consequently: -

i)LPA Nos. 1841 and 1903 of 2012 filed by theHaryana Staff Selection Commission are dismissedwith cost of Rs.50,000/- each to be deposited withEthe High Court Legal Services Committee within aperiod of one month;

ii)LPA No.1562, 1831 to 1839, 1842 to 1855, 1879 to1902, 1904 to 1917, 1997, 2002, 2028 of 2012; 248& 262 of 2013 jointly filed by the State of Haryanaand the Haryana Staff Selection Commission aredismissed with cost of Rs. 10,000/-in each case to bedeposited with the High Court Legal ServicesCommittee within one month;

iii)LPA Nos. 1555,1557,1592,1594, 1856 to 1860, 1870to 1878, 1918 to 1920, 1950 of 2012; 529 of 2013filed by the selected candidates are dismissed withcost of Rs.10,000/- each to be deposited in the HighCourt Lawyer Welfare Fund within one month;

Aiv)LPA Nos. 1595, 1760,1967,2194 of 2012; and 303of 2013 filed by the writ petitioners are disposed ofin the light of the observations made in para-53 ofthis Court;

55) Photostat copies of the four files containing originalBnotings and decisions taken by the Commission or itsChairman from time to time, the decision dated 03.08.2008have been retained and shall be kept as part of the judicialrecord. The original record be returned to the Commissionunder receipt.

C56) Ordered accordingly. Dasti.”

12. These appeals have been filed by the selected candidateswhose selection had been set aside by learned Single Judge and affirmedby the Division Bench. The State of Haryana as well as Haryana StaffSelection Commission had also filed Special Leave to Appeal beingDSLP(Civil) No. 11143-11210 of 2014 which was disposed of by this Courtby following order dated 30.07.2014: -

“Delay condoned.

The issue arising in this group of special leave petitions ispending before this Court in SLP(C) No.35373 of 2013 etc.Efiled at the instance of selected candidates. All the questionsraised herein would be open to the petitioner State to be urgedin SLP(C) No. 35373 of 2013. In that view of the matter, wedo not consider it necessary to issue formal notice in thesespecial leave petitions. Accordingly, they are not beingFentertained. The special leave petitions are disposed in termsof the above.”

13. While entertaining the SLP No.35373 of 2013, Ramjit SinghKardam and others versus Sanjeev Kumar and others, and other specialleave petitions, this Court passed following order on 29.11.2013: -

G“Issue Notice.

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. OnH22.01.2020, this Court passed following order: -

“Hearing to continue tomorrow (23.01.2020).

Learned counsel for the State may produce the original recordof selection.”

15. Further, when the matter was heard on 23.01.2020, learnedcounsel for the State as well as Commission produced certain originalrecords on which date following order was passed: -

“Learned counsel for the State today placed before thisCourt an original tabulation register of the result sheet,selection list register, interview marks register of the memberas well as of expert, which indicate that marking have beendone separately. The letter dated 03.08.2008, in original, hasalso been placed before the Court, which was also placedbefore the High Court.

Heard in part.

List for continuation of arguments on 29.01.2020.

Learned counsel for the State shall produce rest of the originalrecords on the next date of hearing i.e. 29.01.2020.”

16. Matter was further heard by this Court on 29.01.2020 whenfollowing order was passed:-

“We have heard learned counsel for the parties.

Learned counsel appearing for the Commission hasplaced before us further original records i.e. File No.1containing correspondence and another original file. On theearlier occasion learned counsel for the Commission hasproduced the original records which we have noticed in ourorder dated 23.01.2020. The register containing marking byexpert member of the Commission were produced from whichit appears that the expert member has graded the candidatesin A, and category whereas the member of the Commissionhas given marks out of 30. On our query as to whether therewas any guidelines to reflect the evaluation by the Commissionmember or how both were to be correlated, learned counselfor the Commission could not give any reply.

Learned counsel for the petitioners has furthersubmitted that in above facts situation, Commission be directed

to file an affidavit explaining the relevant procedure and theguidelines, if any, with regard to selection in question andother selection at the relevant time. With regard to letter dated03.08.2008, which was produced in an envelope on the lastoccasion, learned counsel for the Commission submitted thatthe said letter as well as the proceeding sheets are not on theoriginal records which have been produced today.

Learned counsel for the respondents, who were writpetitioners, submits that the State Government may also bedirected to give details of the vacancies, existing as on datein the relevant PTI Cadre.

We allow two weeks’ time to the learned counsel for theCommission to file an affidavit giving details as indicatedabove after serving the same on the learned counsel for thepetitioners, who may also file response thereof within weekthereafter.

List on 26.02.2020.”

17. In pursuance of the order of this Court dated 29.01.2020, anaffidavit dated 11.02.2020 sworn by Isha Kamboz, Secretary, HaryanaStaff Selection Commission, has been filed.

E18. For the appellants, we have heard Shri Kapil Sibal, learnedsenior counsel, Shri V.Giri, learned senior counsel, Shri RavindraSrivastava, learned senior counsel, Shri Navneeti Prasad Singh, learnedsenior counsel, Shri Rameswar Malik, learned senior counseland otherlearned counsel. Shri Manoj Swarup has appeared for the respondentFwrit petitioners. We have also heard other counsel appearing forrespondent writ petitioners. Shri A.K. Sinha and other counsels forintervenors. We have heard Shri Anil Grover, Additional AdvocateGeneralfor State of Haryana as well as Haryana State SelectionCommission.

19. Learned counsel for the appellants challenging the judgmentGand order of both learned Single Judge and Division Bench of the HighCourt submits that there were no sufficient grounds and materials beforethe High Court to set aside the entire selection, which was held for 1983posts of PTI. It is submitted that the respondent writ petitioners haveparticipated in selection without any demur or protest, hence, they areHnot entitled to challenge the selection after having been declared

unsuccessful. On the principle of estoppel, they are precluded fromchallenging the selection.

20. It is submitted that criteria for selection was uniformly appliedto all the candidates and respondent writ petitioners having not challengedthe criteria of selection cannot be allowed to challenge the criteria afterdeclaration of the select list.

21. It is submitted that there are no allegations of any mala fideagainst the Chairman or any member of the Commission or anycandidate. The High Court committed error in accepting the grounds ofchallenge by the writ petitioners that those candidates who secured goodmarks in Academics were deliberately given less marks in the viva-voceso that they may go out of select list. Insofar as not holding of the writtenexamination it is submitted that there were grounds for scrapping thewritten examination which was held on 01.02.2007.

22. The Commission decided not to hold the written examinationand proceeded to hold the selection on the basis of criteria which wasapplied in the earlier selection i.e. 2003 selection i.e. 60 marks forAcademics and qualification and 30 marks on the Viva-voice to whichno exception can be taken by respondent writ petitioners. The criteriawhich was applied in the Selection was signed by all members of theCommission on 03.08.2008 to which no exception can be taken by therespondent writ petitioners.

23. The Courts cannot start looking on the marks allocated inViva-voce nor the same is in the domain of the Court. The appellantsare 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 isnot an investigative jurisdiction but it is adjudicatory jurisdiction.

24. Shri Manoj Swarup, learned senior counsel appearing for therespondent writ petitioners submits that the writ petitioners were unawareof the criteria which was to be applied by the Commission in the Selectionand they came to know about the criteria of 60 marks for AcademicsQualifications and 30 marks for Interview only by final result dated10.04.2010 when it was mentioned in the final result.

25. The Commission could not have held any selection withoutdeclaring the criteria beforehand. The written examination which wasre-notified on 11.06.2008 was not proceeded with without any valid reason.

AWritten examination is sure mode of finding out merit in the candidatesand looking to number of the candidates which was more than 20,000,the Commission has rightly taken decision to hold written test of 200marks and interview of 25 marks which ought to have adhered by theCommission.B26. The Commission never informed the candidates that no writtenexamination shall be held. The High Court had summoned the originalrecords and found out from the original records that those candidateswho were meritorious as per the qualification and academic marks weredeliberately given marks ranging from 7 to 13 so that they may go out ofthe Select list. Those candidates who had poor academic records wereCgiven marks in interview ranging from 18 to 28 so that they may getselected.

27. The Commission after taking decision on 30.06.2008 not tohold the written examination, decided to shortlist the candidates forinterview on the basis of marks obtained by them in the academics andDeducational qualification and called the candidates 8 times of the numberof vacancies. Minimum marks were also prescribed for candidates tobe called in the interview. The Commission subsequently did not evenadhere to their notification dated 11.07.2008 and decided to call all eligiblecandidates for interview with intend to help those who could not haveEcome in the criteria of 8 times of the number of vacancies on the basisof Academic record.

28. The Commission from the very beginning has proceeded in amanner which indicate that the merit criteria was deliberately given upto accommodate favourites. The entire selection has rightly been setFaside by learned Single Judge and affirmed by the Division Bench. Therespondent writ petitioners were meritorious and deserved selection inevent the Commission could have proceeded to examine the candidateson merit and as per the criteria of holding written examination or screenthe candidates 8 times of the number of vacancies. The petitioner aftercoming to know about the criteria from the result dated 10.04.2010Gimmediately filed writ petition in May, 2010 challenging the criteria. Theundue delay in declaring the result i.e. one and half year creates doubtabout the fairness of the Commission in declaring the result.

29. Shri Swarup submits that entire selection having scrapped bythe High Court, this Court may direct for holding of fresh selection enablingHthe petitioners to participate and get selected on their merit. It is submitted

that continuance of appellants on the basis of interim order should not begiven any credence. The Commission in conducting the selection on thepost of PTI has not acted as per norms and requirement of law. Decisionto scrap the written test and further not to hold the written test and allthe subsequent steps having taking by Chairman, who alone was notcompetent to take decision, were without authority of law. It is submittedthat decision dated 03.08.2008 on which the reliance has been placed bythe Commission was never taken on 03.08.2008 and when the learnedSingle Judge asked for the criteria, the letter dated 03.08.2008 wasprepared and got signed by all the members and submitted in the HighCourt. The High Court has rightly refused to believe that criteria wasformulated on 03.08.2008 by the Commission.30. Learned counsel for the Commission as well as State ofHaryana submits that criteria which was applied of 60 marks and 30marks was the criteria which was earlier applied also in 2003. It wassubmitted that insofar allocation of marks by member and expert thereare no guidelines or materials to indicate how the marks were awardedin the viva-voice. He further submits that in view of the Haryana SchoolEducation (Group-C) State Cadre Service Rules, 2012, the post of PTIis converted as TGT and PTI have become dying cadre. He submitsthat at present there are no vacancies on the post of PTI which hasbeen declared as dying cadre. Fresh selection can only be held for thepost of TGT (Physical Education) for which qualifications have alsobeen changed.

31. Shri Kapil Sibal, learned senior counsel appearing for appellantin his rejoinder submits that even though 1496 candidates got high marksin the academics, they are only 10% of the total number of candidatesand only few hundreds got 20-27 marks in the viva-voce. From whereHigh Court got the material to hold that 90 percent candidates whoperformed poorly in the Academics got higher marks in the viva-voce?The Commission has said that marks of the Academics and qualificationswere not before the Interview Board. All 8 members of the Commissioncannot be said to have conspired to follow pattern of work.

32. From the pleadings on the records and submissions made bythe learned counsel for the parties, following points arise for consideration:-

i)Whether the respondent writ petitioners who had participatedin the selection were estopped from challenging the selectionin the facts of the present case?

Aii)Whether the respondent writ petitioners could have challengedthe criteria of selection applied by Commission for selectionafter they had participated in the selection?

iii) Whether the decision dated 30.06.2008 to cancel the writtenexamination and the decision dated 11.07.2008 to call theBcandidates for interview 8 times number of vacancies onminimum percentage of marks as fixed therein and the decisiondated 31.07.2008 to call all the eligible candidates for interviewwere arbitrary decision to change selection criteriapublishedon 28.12.2006, which have effect of downgrading the meritin the Selection?C

iv) Whether it was obligatory for the Commission as body totake all decisions pertaining to Selection on the post of PTIincluding the decision of not holding written examination,decision to screen on the basis 8 times of vacancies anddecision to call all eligible candidates and whether aforesaidDdecisions were taken by the Chairman alone?

v)Whether on 03.08.2008, decision was taken by thecommission fixing the criteria for the selection on the post ofPTI which was signed by all the members on 03.08.2008 asclaimed by the Commission?E

vi) Whether without there being any specific allegations ofmalafide against the Chairman and members of theCommission and without they having been impleaded by nameas party respondents, the writ petitioners could have challengedthe allocation of marks in viva-voce and High Court was rightFin accepting the claim that candidates who got highest marksfor academic qualifications ranging between 40 to 48.74 markshave been awarded just 7 to 9 marks in the viva-voce and asagainst it there are hundreds of selected candidates who havebeen awarded 20 to 27 out of 30 marks in the viva-voce toGensure that they outclass the academically bright candidates?

vii) Whether no fresh selection can be held as directed by learnedSingle Judge since as per 2012 Rules, the post of PTI hasbeen declared as dying cadre and the post has merged intothe post of TGT Physical Education?

33. Before we proceed to consider the submissions of the learnedcounsel for the parties and the points formulated as above, we need tonotice the constitution of Haryana Staff Selection Commission, relevantnotifications and orders governing its powers and procedures. Bynotification dated 28.01.1970, the Governor of Haryana, in exercise ofpower conferred by Article 309 of the Constitution of India constitutedthe Subordinate Services Selection Board. All appointments to non-gazetted class-III posts under the Haryana Government exceptappointments of officers and employees of Punjab & Haryana HighCourt provided for in accordance with Article 229 of the Constitution ofIndia were mandated to be made on the advice of the Board. Videnotification dated 09.12.1997, the words “Subordinate Services SelectionBoard” were substituted by “Haryana Staff Selection Commission”. Videnotification dated 28.07.1998, sub-para (d) of para 6 was substituted,according to which the Commission was empowered to devise the modeof selection and fix the criteria for selection of post for which requisitionis sent to it by Department or an office, as it may deem appropriateand 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 witheffect from 20.04.2007, according to which the Commission shall consistof nine members including the Chairman, out of whom minimum oftwo members would be such as have held office for at least ten yearseither under the Government of India or under the Government of theState. In this notification sub-para 4 reads as follows:-

“(iv) in paragraph 6, for clause (d), the following clause shall besubstituted and shall be deemed to have been substituted witheffect from 10[th] January, 2006, namely:-

“(d) methods of recruitment and the principles to be followedin making appointments to the Group B, Group and Group Dposts under the State Government. The Commission shall devisethe mode of selection and fix the criteria for selection of postsfor which requisition is sent to it by department of an office,as it may deem appropriate and the criteria for the selection ofposts fixed earlier by the Board/Commission shall be deemedto have been fixed under the clause.”

34. As per notifications mentioned above, the Commission wasempowered to devise the mode of selection and fix the criteria for

Aselection of posts for which request was sent to it by department or anoffice. Sub-paragraph 4 of the notification dated 20.04.2007 as extractedabove, which was substituted w.e.f. 10.01.2006 empowered theCommission providing that Commission shall devise the mode of selectionand fix the criteria for selection of posts and for which request is sent bya department or an office. The selection on various posts was to beBconducted as per the criteria fixed by the Commission. There are noseparate statutory rules providing for criteria for recruitment for differentposts including the post of PTI with which we are concerned in theseappeals.

35. We having noticed that the power is vested in the CommissionCto fix the criteria for selection, we now proceed to consider points fordetermination.

Point Nos.1 and 2

36. Learned counsel for the appellant at very outset contendedDthat the writ petitions filed by the respondent challenging the select listdated 10.04.2001 ought not to have been entertained by the High Courtsince the respondent having participated in the selection without anydemur or protest, they are estopped from challenging the selection. Thesubmission is refuted by the respondent contending that the above principleof estopple is not applicable in the facts of the present case. The petitionerEbeing 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 wasno occasion to make any challenge by the respondents before the abovedate.

37. The preposition that candidate, who participates in selectionFwithout demur taking calculated chance to get selected cannot turnaround and challenge the criteria of selection and the constitution of theselection committee is well settled. The appellants have placed relianceon judgment of this Court in Madan Lal and Others Vs. State ofJ&K and Others, (1995) 3 SCC 486; K.A. Nagamani Vs. IndianGAirlines and Others, (2009) 5 SCC 515; Manish Kumar ShahiVs. State of Bihar and Others, (2010) 12 SCC 576; MadrasInstitute of Development Studies and Another Vs. K.Sivasubramaniyan and Others, (2016) 1 SCC 454 and AshokKumar and Another Vs. State of Bihar and Others, (2017) 4 SCC357.H

38. In Madan Lal and Others(supra), this Court laid downfollowing in paragraph 9:-

“9. ……………………….It is now well settled that if candidatetakes calculated chance and appears at the interview, then, onlybecause the result of the interview is not palatable to him, hecannot turn round and subsequently contend that the process ofinterview was unfair or the Selection Committee was not properlyconstituted. In the case of Om Prakash Shukla v. AkhileshKumar Shukla, 1986 Supp SCC 285, it has been clearly laiddown by Bench of three learned Judges of this Court that whenthe petitioner appeared at the examination without protest andwhen he found that he would not succeed in examination he fileda petition challenging the said examination, the High Court shouldnot have granted any relief to such petitioner.”39. The above preposition has been reiterated in other judgmentsof this Court noted above. In the present case, whether the respondents-writ petitioners are estopped from challenging the selection? Whilenoticing the facts of the case, we have noted above that both appellantsand the respondents had submitted applications in pursuance ofadvertisement dated 28.07.2006 No.6/2006. In advertisement, it wasprovided that the Commission may shortlist the candidates for interviewby holding written examination or on the basis of rational criteria tobe adopted by the Commission. The Commission on 28.12.2006 publishedthe criteria for calling the candidates for interview. Notice dated28.12.2006 provided that written examination shall be held for post ofPTI on 21.01.2007, on 100 objective type multiple choice questions, eachquestion carrying two marks. The notification also prescribed the minimumqualifying marks- 50% for General category, SC BC and ESM 45% and25% marks was assigned to the viva voce. The above criteria wasimplemented and written examination was conducted on 21.01.2007,which examination was cancelled citing complaints regardingmalpractices in the written examination. Further notice dated 11.06.2008was published fixing 20.07.2008 for written examination as per criteriaearlier notified. Before the above examination could take place, by publicnotice dated 30.06.2008, it was cancelled. Another public notice dated11.07.2008 was published where Commission decided to shortlist eighttimes the candidates of the advertised post with minimum weightagesecured in each category. The said shortlisting was also given up bynotice dated 31.07.2009 when it was decided to call all eligible candidates

Afor interview. Commission did not publish any criteria or marks on thebasis of which interview was to be held. The criteria, which was publishedby the Commission on 28.12.2006, 11.06.2008 and 11.07.2008 were givenup step by step and no criteria was published for interview, which wasscheduled to take place in from 2[nd]September to 17[th]October, 2008.When Commission had not published any criteria on the basis of whichBcandidates were going to be subjected for selection process and thecandidates participated in the selection without knowing the criteria ofselection, they cannot be shut out from challenging the process of selectionwhen ultimately they came to know that Commission step by step hasdiluted the merit in selection. When candidate is not aware of the criteriaCof selection under which he was subjected in the process and the saidcriteria for the first time is published along with final result dated10.04.2010, he cannot be estopped from challenging the criteria ofselection and the entire process of selection. Further when the writtenexamination as notified earlier was scrapped and every eligible candidatewas called for interview giving go bye to fair and reasonable processDfor shortlisting the candidates for interview, that too only by Chairman ofthe Commission whereas decision regarding criteria of selection has tobe taken by Commission, the candidates have every right to challengethe entire selection process so conducted. This Court in Raj Kumarand Others Vs. Shakti Raj and Others, (1997) 9 SCC 527 held thatEwhen glaring illegalities have been committed in the procedure to get thecandidates for examination, the principle of estoppel by conduct oracquiescence has no application. Referring to judgment of this Court’sjudgment in Madan Lal (supra), this Court laid down following inparagraph 16:-F“16.…………………………………………The entireprocedure is also obviously illegal. It is true, as contended by ShriMadhava Reddy, that this Court in Madan Lal v. State of J&K,(1995) 3 SCC 486 and other decisions referred therein had heldthat candidate having taken chance to appear in an interviewand having remained unsuccessful, cannot turn round and challengeGeither the constitution of the Selection Board or the method ofselection as being illegal; he is estopped to question the correctnessof the selection. But in his case, the Government have committedglaring illegalities in the procedure to get the candidates forexamination under the 1955 Rules, so also in the method of selection

and exercise of the power in taking out from the purview of theBoard and also conduct of the selection in accordance with theRules. Therefore, the principle of estoppel by conduct oracquiescence has no application to the facts in this case. Thus,we consider that the procedure offered under the 1955 Rulesadopted by the Government or the Committee as well as the actiontaken by the Government are not correct in law.”

40. One more judgment of this Court which supports the viewtaken by the High Court is Bishnu Biswas and others Union of Indiaand others, (2014) 5 SCC 774. An advertisement was published callingapplications for appointment to the post of Group staff. The RecruitmentRules only provided for written examination having 50 maximum marks.After holding written examination notice was issued calling the successfulcandidates for interview. Although such interview was not part of therecruitment process, select list was published which was challenged inthe Tribunal. The Tribunal returned finding that the manner in whichmarks have been awarded in the interview to the candidates indicatedlack of transparency. The High Court upheld the reasoning of the Tribunalbut modified the order to the extent of continuing the recruitment processfrom the point it stood vitiated. This Court laid down following inparagraphs 19 and 20:

“19. In the instant case, the rules of the game had been changedafter conducting the written test and admittedly not at the stageof initiation of the selection process. The marks allocated for theoral interview had been the same as for written test i.e. 50% foreach. The manner in which marks have been awarded in theinterview to the candidates indicated lack of transparency. Thecandidate who secured 47 marks out of 50 in the written test hadbeen given only 20 marks in the interview while large number ofcandidates got equal marks in the interview as in the writtenexamination. Candidate who secured 34 marks in the writtenexamination was given 45 marks in the interview. Similarly, anothercandidate who secured 36 marks in the written examination wasawarded 45 marks in the interview. The fact that today the so-called selected candidates are not in employment, is also relevantfactor to decide the case finally. If the whole selection is scrappedmost of the candidates would be ineligible at least in respect ofage as the advertisement was issued more than six years ago.

1126SUPREME COURT REPORTS

A20. Thus, in the facts of this case the direction of the High Courtto continue with the selection process from the point it stood vitiateddoes not require interference. In view of the above, the appealsare devoid of merit and are accordingly dismissed. No costs.”

41. The Division Bench of the High Court is right in its conclusionBthat the selection criteria, which saw the light of the day along withdeclaration of the selection result could be assailed by the unsuccessfulcandidates only after it was published. Similarly, selection process whichwas notified was never followed and the selection criteria which wasfollowed was never notified till the declaration of final result, hence, thewrit petitioners cannot be estopped from challenging the selection. We,Cthus, hold that the writ petitions filed by the petitioners could not havebeen thrown on the ground of estoppel and the writ petitioners couldvery well challenge the criteria of selection applied by the Commission,which was declared by the Commission only at the time of declarationof the final result. We, thus, answer point Nos. 1 and 2 as follows:-D(i)The writ petitioners, who had participated in the selection arenot estopped from challenging the selection in the facts of thepresent case.

(ii) The writ petitioners could have very well challenged the criteriaof selection, which was declared by the Commission only inEthe final result declared on 10.04.2010.

POINT NOS.3, 4 AND 5

42. The selection and appointment on post borne on the Stateestablishment provides an opportunity to citizens of public employment.FThe personnel who man the civil posts in State apart from carrying outobjectives and policies of State also serve as source of sustenance fortheir families. The selection and appointment on post in the State have toconform to the fundamental rights guaranteed to the citizens underArticles 14 and 16. The objective of State in selecting persons intopublic service has always been to select the best and most suitable person.GJustice O. Chinnappa Reddy, J. speaking for this Court in Lila Dhar vs.State of Rajasthan and others, (1981) 4 SCC 159, had laid downthat open competition has been accepted universally as the gateway topublic services. In paragraphs 4 and 5 following has been laid down:

“4. The object of any process of selection for entry into publicHservice 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 ofany useful and efficient public service. So, open competitiveexamination has come to be accepted almost universally as thegateway to public services.

“The ideal in recruitment is to do away with unfairness.

Competitive examinations were the answer to the twinproblems represented by democracy and the requirements ofgood administration. They were the means by which equalityof opportunity was to be united with efficiency.... By this meansfavouritism was to be excluded and the goal of securing thebest man for every job was to be achieved.

Open competitive examinations are peculiarlydemocratic institution. Any qualified person may come forward.His relative competence for appointment is determined by aneutral, disinterested body on the basis of objective evidencesupplied by the candidate himself. No one has ‘pull’; everyonestands on his own feet. The system is not only highly democratic,it is fair and equitable to every competitor. The same rulesgovern, the same procedures apply, the same yardstick is usedto test competence.”

5. How should the competitive examination be devised? TheKothari Committee on Recruitment Policy and Selection Methodsin their report said:

“A system of recruitment almost totally dependent onassessment of person’s academic knowledge and skills, asdistinct from ability to deal with pressing problems of economicand social development, with people, and with novel situationscannot serve the needs of today, much less of tomorrow....We venture to suggest that our recruitment procedures shouldbe such that we can select candidates who can not onlyassimilate knowledge and sift material to understand theramifications of situation or problem but have the potentialto develop an original or innovative approach to the solution ofproblems.”

It is now well-recognised that while written examinationassesses candidate’s knowledge and intellectual ability, an

1128SUPREME COURT REPORTS

Ainterview-test is valuable to assess candidate’s overallintellectual and personal qualities. While written examinationhas certain distinct advantages over the interview-test thereare yet no written tests which can evaluate candidate’sinitiative, alertness, resourcefulness, dependableness,cooperativeness, capacity for clear and logical presentation,Beffectiveness in discussion, effectiveness in meeting and dealingwith others, adaptability, judgment, ability to make decision,ability to lead, intellectual and moral integrity. Some of thesequalities may be evaluated, perhaps with some degree of error,by an interview-test, much depending on the constitution ofCthe Interview Board.”

43. In the above judgment this Court has elaborately consideredthe merit of selection of written examination as well as usefulness ofinterview test. The above observations by this Court were quoted withapproval by the Constitution Bench of this Court in Ashok Kumar YadavDand others vs. State of Haryana and others, 1985(4) SCC 417. Inparagraph 23 following was laid down:

“23. This Court speaking through Chinnappa Reddy, J. pointedout in Lila Dhar v. State of Rajasthan that the object of anyprocess of selection for entry into public service is to secure theEbest and the most suitable person for the job, avoiding patronageand favouritism. Selection based on merit, tested impartially andobjectively, is the essential foundation of any useful and efficientpublic service. So open competitive examination has come to beaccepted almost universally as the gateway to public services.But the question is how should the competitive examination beFdevised? The competitive examination may be based exclusivelyon written examination or it may be based exclusively on oralinterview or it may be mixture of both. It is entirely for theGovernment to decide what kind of competitive examination wouldbe appropriate in given case………………”

44. After the advertisement of the vacancies of PTI, theCommission issued public notice on 28.12.2006 deciding to hold writtenexamination of 200 marks and viva voce test of 25 marks to select thebest suitable candidates for 1983 posts of PTI. The public notice furthercontemplated minimum qualifying marks 50% for general category andH45% for SC and BC and 40% for ESM. The above criteria evolved by

the Commission for selection on the posts was implemented by holdingthe written examination on 21.01.2007 which examination was cancelledafter receiving some complaints and reports regarding malpractices inexamination. Even though examination was cancelled but the Commissioncontinued with the same criteria for completing the selection which wasso notified on 11.06.2008 again in which examination on the same patternwas to take place on 20.07.2008. On 30.06.2008 type note by theSuperintendent (Recruitment-I) was prepared mentioning that theChairman had ordered that written test for the posts of DPE, Art andCraft Teacher and PTI, Education Department, Haryana, scheduled totake place, may be “cancelled on administrative reasons”. The notedated 30.06.2008 was approved by the Chairman and he also approvedthe notice to be published for cancellation of the proposed writtenexamination, neither the note nor the order of Chairman approving thenote give any indication of “administrative reasons”for cancellation ofthe examination. Another important change which was effected in thecriteria for selection was the notification with the approval of notedated 10.07.2008 which mentioned that the worthy Chairman had issuedoral direction that in respect of advertisement No.6 of 2006 CategoryNo.23, candidates are required to be short-listed 8 times of the vacancyand called for interview. Short-listing was to be done on the percentageof the marks of the candidates with minimum percentage mentionedtherein. The Chairman on 11.07.2008 approved the notice to be publishedin the Newspapers with detail regarding short-listing of the candidate’scategory wise with minimum percentage. The above criteria was alsogiven up when another note dated 31.07.2008 was approved by theChairman where the Chairman decided that all the eligible candidatesbe called for interview changing the earlier criteria.The interview wasfixed between 02.09.2008 and 17.10.2008 and the candidates wereinterviewed by eight Committees.

45. The above sequence of events indicates that in accordancewith the “special instruction” extracted above the Commission decidedthe criteria for calling the candidates for the selection as holding of writtenexamination of 200 marks and interview for 25 marks which was theperfect criteria looking to the number of the candidates i.e. 20836 whohad applied in pursuance of the advertisement for the post of PTI. Thecriteria was implemented by holding written test on 21.07.2007 whichwas cancelled due to some complaints. The written test was again notifiedfor 20.07.2008 which was withdrawn by notice published on 30.06.2008,

Athe earlier criterion was given go bye by another notification dated11.07.2008. The above indicates that the standard on which candidatesare to be screened for selection was downgraded by Chairman of hisown.When the number of candidates who applied against certain postsare enormously large, short-listing has always been treated as an acceptedmode to correctly value the work and merit of the candidate. The DivisionBBench of the High court on the alteration of the mode of selection asnoticed above has made following observation in paragraph 37 of thejudgment:

“(37) Thus, even accepting the appellants’ plea that‘selection criteria’ or ‘mode of selection’ can be altered midstreamCto short-list the candidates with higher merit, here is case wherethe alterations have been designed with the sole object ofdowngrading and not upgrading the standards of selection to publicemployment.

Was the Chairman competent to take policy decisions likeD‘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 reasonable and fair manner toadvance the purpose and object of selection. Even if it is assumed forEthe sake of the argument that the Commission can change the criteria ofselection from time to time, the said power has to be exercised not in anarbitrary manner.

47. We may in this context refer to three-Judge Bench judgmentof this Court in Tamil Nadu Computer Science BED GraduateFTeachers Welfare Society(1) vs. Higher Secondary SchoolComputer Teachers Association and others, 2009(14) SCC 517.In the above case Computer instructors were appointed on contractbasis to various Schools. The Government decided to hold special testby the Teacher Recruitment Board for selection of computer instructors.On 10.10.2008 the State Government took decision that minimumGqualification marks would be 50%. Special Recruitment Test wasannounced as 12.10.2008. On the night of 12.10.2008 list of candidatesfor appointment to the post of computer instructors based on the specialrecruitment test was put on the Internet. While publishing the said marksof the candidates, it was made clear that all candidates who have securedH35% marks in the test would be called for certificate verification. The

State Government reduced the minimum qualifying marks to 35%. ThisCourt did not approve the reduction of qualifying marks from 50% to35%. Following was laid down in paragraph 33:

“33. We, however, cannot hold that the subsequent decision ofthe Government thereby changing qualifying norms by reducingthe minimum qualifying marks from 50% to 35% after the holdingof the examination and at the time when the result of theexamination was to be announced and thereby changing the saidcriteria at the verge of and towards the end of the game as justified,for we find the same as arbitrary and unjustified. This Court inHemani Malhotra v. High Court of Delhi,[(2008) 7 SCC 11,] hasheld that in recruitment process changing rules of the game duringselection process or when it is over are not permissible.

48. Learned counsel for the appellant has submitted that judgmentsof this Court laying down the criteria for selection cannot be changedduring the course of selection has been referred to larger Bench by ajudgment of this Court in Tej Prakash Pathak and others vs. RajasthanHigh Court and others, 2013 (4) SCC 540, hence the judgment ofthis Court laying down the criteria cannot be changed during the courseof the selection is yet to be tested. For the purposes of the present casewe proceed on the assumption that even if the criteria can be changedby selecting body from time to time, the said change cannot be affectedarbitrarily. The present is case where change in criteria has beenaffected and altered arbitrarily with the object of down-grading and notup-grading the standards of selection. The High Court did not commitany error in not upholding the change of criteria effected after start ofselection process with which finding we fully concur.49. The notifications issued under proviso to Article 309 of theConstitution of India specifically provides that the Commission shall devisethe mode of selection and fix the criteria for selection of posts. Thepower to devise the mode of selection and fix the criteria was, thus,entrusted to the Commission. Commission is multi-member body, whichacts collectively. The Commission in the counter affidavits filed beforeHigh Court or this Court has not brought any rules or resolution of theCommission by which power of the Commission to devise the mode ofselection and fix the criteria have been delegated to any other memberincluding the Chairman. In Principles of Administrative Law, M.P.Jain & S.N. Jain, 6[th] Edition, writes in Chapter XXII states:-

1132SUPREME COURT REPORTS

A“When power is conferred on multi-member body, the powerought to be exercised by the concerned body; the power cannotbe exercised either by the chairman alone or by one of itsmembers. This can be done only if the body concerned delegatespower to the chairman or single member to discharge certainfunctions on its behalf.”

50. When there are no statutory rules regarding allocation ofbusiness of the Commission or delegating its business to members orCommittee, the Commission could very well by its resolution devise itsown mode of exercising such power or function, which preposition hasbeen laid down by this Court by Constitution Bench in NaraindasCIndurkhya 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 generalproposition that when power or function is given by the statuteto corporate body and no provision is made in the statute as toDhow such power or function shall be exercised, the corporatebody can by resolution passed at the general meeting devise itsown mode of exercising such power or function, such as authorisingone or more of the members to exercise it on behalf of theBoard…………………”

E51. The Division Bench of the High Court after pursuing the originalrecords, which was summoned by it from the Commission has returneda finding that the decision of the Commission dated 30.06.2008, 11.07.2008as well as 31.07.2008 have all been taken by the Chairman alone, whichwas proved from original records containing the relevant notes andFapproval by the Chairman. The alteration of criteria, thus, was sole handi-work of the Chairman, which decision was not the decision of theCommission. It is not even claimed in the affidavit filed before the HighCourt or before this Court that said decisions were decisions taken bythe Commission. The conclusion is, thus, inescapable that criteria forconducting selection for the post of PTI as was published on 28.12.2006Gwas altered by the Chairman step by step completely giving go bye tothe method of merit selection. The statutory notifications when entrustthe Commission to devise the mode of selection and fix the criteria andthe Commission being multi-member body, Chairman alone was notcompetent to alter the mode of selection and the criteria, which wasHfixed and published for conducting the selection for the post of PTI.52. Now, we come to the decision dated 03.08.2008, which was adecision fixing the criteria for selection signed by all the members of theCommission, the High Court after minutely looking into the original recordshas held that in the original records, which was produced before theHigh Court by the Commission, there is no mention of the criteria formaking selection dated 03.08.2008 nor the said one page decision waspart of the original records. The said one-page decision was separatelyproduced before the High Court and before us. Learned counsel for theCommission have placed that one-page decision in an envelope beforeus also which we have also perused. The Division Bench of the HighCourt in paragraph 42 has dealt with the decision dated 03.08.2008 andhas affirmed the findings of the learned Single Judge that the said decisiondated 03.08.2008 was prepared only when learned Single Judge directedthe Commission to produce the criteria of selection. Division Bench ofthe High Court has given weighty reasons for not accepting the claimset 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 thefollowing effect:-

“(41) It is unfortunate that instead of reversing his unlawfuldecisions, taken by side-tracking eight other Members (as it wasa nine-Member body since 21.06.2007), the Chairman involvedthose other Members in mock-drill and flashed surprise on thelearned Single Judge by producing the 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 producedin sealed envelope. We firmly affirm the findings returned bythe learned Single Judge to discard the same. We say so for thereasons that (i) various administrative decisions whether taken bythe Commission as multi-Member body (only one such decisionfound in the Files) or by the Chairman contained in the Filesproduced 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 thelast week of September, 2008 or in first week of October, 2008 donot even whisper about any meeting of the Commission held on03.08.2008 or the decision taken therein; and (iii) the unusualmanner in which the ‘loose sheet’ has been prepared casts

1134SUPREME COURT REPORTS

serious doubt on its genuineness. The so-called decision dated03.08.2008 was thus apparently contrived to defeat the cause ofthe writ-petitioners and to mislead the learned Single Judge, whohas rightly held that it was only when he directed to produce thecriteria of selection that this ‘loose sheet’ “was prepared andproduced in Court”.”

53. We fully concur with the above findings of the High Courtwith regard to decision dated 03.08.2008. It is, thus, proved that decisiondated 03.08.2008 was prepared by the Commission subsequent todeclaration of the result and only when the learned Single Judge directedthe Commission to produce the criteria under which the selection for theCpost of PTI was undertaken.

54. As noted above the decision of Chairman of the Commissiondated 30.06.2008 not to hold the written examination was claimed tohave been taken due to “administrative reasons”, but what were“administrative reasons” have never been disclosed or brought on recordDby the Commission. The decision to change the selection process asnotified on 28.06.2006 was major decision not only affecting theapplicants who had to participate in the selection on the basis of criteriaas notified on 28.12.2006 but had adverse effect on merit selection asdevised for 1983 posts of PTI.

55. As per advertisement dated 20.07.2006, the Commission hadpublished the criteria for selection on 28.12.2006 which was implementedalso, hence, there was no occasion to give up the merit selection inmidway. Further, when no reasons are forthcoming to support the socalled ‘administrative reasons’ in the decision dated 30.06.2008 whichFwas so stated by Chairman for the scrapping the written test, we haveto hold the said decision arbitrary and without reason. The written testconsisting of 100 objective type of multiple choice questions out of which60 questions relating to academic knowledge of the respective subjectsincluding skill and method of teaching ability and 40 questions relating togeneral knowledge, general English and Hindi upto matric standard wasGwell thought screening test, easy to conduct and easy to evaluate. TheCommission being recruiting body abdicated its obligation of screeningout the best candidates; The competitive examination, are means bywhich equality of opportunity was to be united with efficiency. By theabove method favouritism was to be excluded and the goal of securing

the best man for the job was to be achieved. We, thus, conclude thatdecision dated 30.06.2008 for not holding the written examination andsteps taken consequent thereto were all arbitrary decisions, unsustainablein law.

56. At this stage we may note one more submission of Shri KapilSibal. Shri Sibal submits that when the Commission published noticedated 30.06.2008 that no written test shall be held, the writ petitionersought to have challenged the above decision and the petitioners shouldhave insisted that written examination may be held. They having notraised any challenge, at this stage, cannot be permitted to say that writtentest ought to have been held.

57. We having held that change in criteria of selection was nevernotified by the Commission and about the change in process of selectioncandidates were kept in total dark and for the first time the criteriaapplied in selection process was published along with result dated10.04.2008, the writ petitioners cannot be estopped in challenging thearbitrary criteria so applied. The submission of Shri Sibal cannot beaccepted. The petitioners have never questioned the criteria which waspublished on 28.12.2006 i.e. written test of 200 marks and viva voce of25 marks, merely because they participated in the process of selectionafter the change of criteria, their right to challenge the arbitrary changecannot be lost. Estopping the petitioners from challenging the change ofcriteria will be giving seal to arbitrary changes affected by Chairman asnoted above.

58. In view of the foregoing discussions, we answer point Nos.3,4and 5 in following manner: -

Ans.3:

The decisions dated 30.06.2008, 11.07.2008 and 31.07.2008 werearbitrary decisions without any reason to change the selection criterionpublished on 28.12.2006 which have effect of downgrading the merit inthe selection.

Ans.4:

The Commission being multi-member body, all decisionspertaining to mode of selection and criteria was to be taken by theCommission itself, there being no rules or resolution delegating the saidpower to Chairman or any other member.

The decision of not holding written examination dated 30.06.2008,decision to screen on the basis of eight times of vacancies and percentageof marks dated 11.07.2008 and decision dated 31.07.2008 to call all eligiblecandidates, were all decisions taken by the Chairman himself, whichdecisions cannot be said to be decisions of the Commission.

BAns.5:

The decision dated 03.08.2008 was never taken on 03.08.2008 asclaimed and the said resolution was prepared subsequent to declarationof the result when the learned Single Judge asked for criteria of theselection, which was produced in separate loose sheet signed by allmembers.C

Point No.6

59. Shri Kapil Sibal, learned senior counsel has emphaticallysubmitted that in the writ petitions, there are no allegations of mala fideagainst the Chairman or any member of the Commission and furtherneither Chairman nor any members being impleaded as party respondentDby the writ petitioner, the petitioners could not have challenged theallocation of marks in viva voce and there was no basis for any claimthat marks in the viva voce of candidates having high academicqualification were deliberately reduced and those, who had poor academicrecords were deliberately given marks between 20 to 27 in the vivaEvoce. Shri Kapil Sibal has placed reliance on judgment of this Court inRatnagiri Gas and Power Private Limited Vs. RDS ProjectsLimited and Others, (2013) 1 SCC 524, where this Court has laiddown that the law casts heavy burden on the person alleging malafides. This Court has further laid down that when the petitioners allegesmalice in fact, it is obligatory for the petitioner to furnish particulars andFimplead the persons against whom such malice in fact is alleged. Inparagraphs 25, 26.1, 26.2 and 27, following has been laid down:-

“25.………………….The law casts heavy burden on the personalleging mala fides to prove the same on the basis of facts thatare either admitted or satisfactorily established and/or logicalinferences deducible from the same. This is particularly so whenthe petitioner alleges malice in fact in which event it is obligatoryfor the person making any such allegation to furnish particularsthat would prove mala fides on the part of the decision-maker.Vague and general allegations unsupported by the requisite

particulars do not provide sound basis for the court to conductan inquiry into their veracity.

XXXXXXXXXXXXXXXX

26.1. In State of Bihar v. P.P. Sharma, 1992 Supp. (1) SCC222, this Court summed up the law on the subject in the followingwords: (SCC p. 260, paras 50-51)

“50. ‘Mala fides’ means want of good faith, personal bias,grudge, oblique or improper motive or ulterior purpose. Theadministrative action must be said to be done in good faith, if itis in fact done honestly, whether it is done negligently or not.An act done honestly is deemed to have been done in goodfaith. An administrative authority must, therefore, act in bonafide manner and should never act for an improper motive orulterior purposes or contrary to the requirements of the statute,or the basis of the circumstances contemplated by law, orimproperly exercised discretion to achieve some ulteriorpurpose. The determination of plea of mala fide involves twoquestions, namely, (i) whether there is personal bias or anoblique motive, and (ii) whether the administrative action iscontrary to the objects, requirements and conditions of validexercise of administrative power.

51. The action taken must, therefore, be proved to havebeen made mala fide for such considerations. Mereassertion or vague or bald statement is not sufficient. Itmust be demonstrated either by admitted or proved facts andcircumstances obtainable in given case. If it is establishedthat the action has been taken mala fide for any suchconsiderations or by fraud on power or colourable exercise ofpower, it cannot be allowed to stand.”

(emphasis supplied)

26.2. We may also refer to the decision of this Court in Ajit KumarNag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 where theCourt declared that allegations of mala fides need proof of highdegree and that an administrative action is presumed to be bonafide unless the contrary is satisfactorily established. The Courtobserved: (SCC p. 790, para 56)

“56. … It is well settled that the burden of proving mala fide ison the person making the allegations and the burden is ‘veryheavy’. (Vide E.P. Royappa v. State of T.N., (1974) 4 SCC3) There is every presumption in favour of the administrationthat the power has been exercised bona fide and in good faith.It is to be remembered that the allegations of mala fide areoften more easily made than made out and the very seriousnessof such allegations demands proof of high degree of credibility.As Krishna Iyer, J. stated in Gulam Mustafa v. State ofMaharashtra, (1976) 1 SCC 800 (SCC p. 802, para 2): ‘It

(mala fide) is the last refuge of losing litigant.’”

27. There is yet another aspect which cannot be ignored. As andwhen allegations of mala fides are made, the persons against whomthe same are levelled need to be impleaded as parties to theproceedings to enable them to answer the charge. In the absenceof the person concerned as party in his/her individual capacity itwill neither be fair nor proper to record finding that malice infact had vitiated the action taken by the authority concerned. It isimportant to remember that judicial pronouncement declaringan action to be mala fide is serious indictment of the personconcerned that can lead to adverse civil consequences againsthim.……………………….”

60. There cannot be any dispute to the above preposition of lawreiterated by this Court as above. We have noticed from the array ofthe parties in the writ petition that neither Chairman nor the members ofthe Commission were personally impleaded nor there are any specificallegations of mala fide against the Chairman or the members of theFCommission.

61. The present is not case of malice in fact. The “malice infact” and “malice in law” are two well-known concepts in law. InRatnagiri Gas and Power Private Limited (supra), this Court hasdealt with both the concepts, i.e., “malice in fact” and “malice in law”.GDealing with the conceptual difference between “malice in fact” and“malice in law”, this Court laid down following in paragraphs 30, 31 and32:-

“30.……………………….The conceptual difference betweenthe two has been succinctly stated in the following paragragh byHLord Haldane in Shearer v. Shields, 1914 AC 808 (HL) quoted

with approval by this Court in ADM, Jabalpur v. ShivakantShukla, (1976) 2 SCC 521: (SCC p. 641, para 317)

“317. … ‘Between “malice in fact” and “malice in law” thereis broad distinction which is not peculiar to any system ofjurisprudence. The person who inflicts wrong or an injuryupon any person in contravention of the law is not allowed tosay that he did so with an innocent mind. He is taken to knowthe law and can only act within the law. He may, therefore, beguilty of “malice in law”, although, so far as the state of hismind was concerned he acted ignorantly, and in that senseinnocently. “Malice in fact” is different thing. It means anactual malicious intention on the part of the person who hasdone 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 inState of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739 wherethe difference between “malice in fact” and “malice in law” wassummed up in the following words: (SCC p. 744, paras 12-13)

“12. The legal meaning of ‘malice’ is ‘ill will or spite towardsa 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 lawfulexcuse’. In other words, ‘it is an act done wrongfully andwilfully without reasonable or probable cause, and notnecessarily an act done from ill feeling and spite. It is adeliberate act in disregard of the rights of others.’ (See Wordsand Phrases Legally Defined, 3rd Edn., London, Butterworths,1989.)

13. Where malice is attributed to the State, it can never bea case of personal ill will or spite on the part of the State.If at all it is malice inlegal sense, it can be described as anact which is taken with an oblique or indirect object.”

(emphasis supplied)

32. To the same effect is the recent decision of this Court in RaviYashwant Bhoir v. Collector, (2012) 4 SCC 407 wherein thisCourt observed: (SCC p. 431, paras 47-48)

“Malice in law

47. This Court has consistently held that the State is under anobligation to act fairly without ill will or malice in fact or in law.Where malice is attributed to the State, it can never be caseof personal ill will or spite on the part of the State. ‘Legalmalice’ or ‘malice in law’ means something done without lawfulexcuse. It is deliberate act in disregard to the rights of others.It is an act which is taken with an oblique or indirect object. Itis an act done wrongfully and wilfully without reasonable orprobable cause, and not necessarily an act done from ill feelingand spite.

48. Mala fide exercise of power does not imply any moralturpitude. It means exercise of statutory power for ‘purposesforeign to those for which it is in law intended’. It meansconscious violation of the law to the prejudice of another, adepraved inclination on the part of the authority to disregardthe rights of others, where intent is manifested by its injuriousacts. Passing an order for unauthorised purpose constitutesmalice 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. HemantVimalnath Narichania, (2010) 9 SCC 437.)”

62. The malice in law has been dealt as “something done withoutlawful excuse”. The malice in law is also mala fide exercise of power,exercise of statutory power for purposes foreign to those for which it isin law intended. In the present case, the power to device the mode ofselection and fix the criteria for selection was entrusted on the CommissionFto further the object of selection on merit to fill up post in State inconsonance with the provisions of Articles 14 and 16 of the Constitutionof India.When the alteration of criteria has been made, which hasobviously affected the merit selection as we have found above, theallegations which have been made in the writ petition against theGCommission in conducting the selection are allegations of malice-in-lawand not malice-in-fact.

63. The High Court had summoned the original records of theCommission including the marks awarded to the candidates both on basicqualification as well as essential qualification as well as viva voce. The

observations, which have been made by the Division Bench in paragraphs34 and 36 were inferences drawn by the High Court based on pattern ofthe marks allocated to some of the selected candidates and non-selectedcandidates. The observation of the High Court that “it cannot be mereco-incidence that 90% of the meritorious candidates in academicsperformed so poorly in viva voce that they could not secure even 10marks out of the 30 marks or that the brilliance got configurated only inthe average candidates possessing bare eligibility” where inferencesdrawn from result sheet and re-affirms the allegations of malice-in-law.The inferences drawn by the High Court, thus, cannot be said to beunfounded nor are based on no material or perverse so as to call for anyinterference by this Court in these appeals. We, thus, do not find anysubstance in the submission of Shri Sibal that since no specific allegationsagainst Chairman and members have been made and they being notimpleaded as the parties, the allegations in the writ petition regardingallocation 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 whileallowing the writ petition issued following directions: -

“These writ petitions are thus allowed. The purported selectionmade by the Haryana Staff Selection Commission in pursuanceto the advertisement No.6/2006, result whereof was published on11.4.2010 relating to category No. 23 for the posts of PTIs, ishereby quashed. direction is issued to the Haryana Staff SelectionCommission to hold fresh selection, in accordance with law,within period of five months from the date of receipt of certifiedcopy of this order.”

65. Learned counsel appearing for the Commission and for theState of Haryana submitted that no fresh selection canbe conducted onthe post of PTI in view of the statutory rules namely, Haryana SchoolEducation 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 inthe relevant PTI Cadre, the Haryana Staff Selection Commissionwrote letter to Department of School Education to get the status

of existing vacancies in PTI Cadre. In response to above saidletter, the Department of School Education provided the followingresponse and the operative part of said response is reproduced asfollows:-

“In this regard, it is submitted that the Classical & Vernacular(C&V) cadre which includes the appointment of PTI also hasbeen declared diminishing cadre by the Government of Haryanaby way of notifying the Haryana School Education (Group-C)State Cadre Service Rule, 2012 vide notification No.GSR-12/Const./Art.309/2012 dated 11.04.2012. The operative part ofthese rules, defined in Rule-9(5) is relevant to be detailed herein:-

The present Classical & Vernacular (C&V) cadre consistingof the posts of Sanskrit Teachers, Hindi Teachers, PunjabiTeachers, Physical Training Instructors (PTIs), Art & CraftTeachers (Drawing Teachers), Tailoring Teachers and TablaPlayers and governed by the Haryana State Education SchoolCadre (Group C) Service Rules, 1998 shall be converted toTGT in relevant subject and no further requirement shall bemade to these categories when the present incumbent on thenotification of these rules vacate the post on his promotion,retirement or any other purpose.

Since all the vacancies which were in existence on 11.04.2012have already been converted in TGT cadre and further thevacancy came into existence due to promotion, retirement orany other ground of 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 forconsideration and further action thereon.”

66. Elaborating his submission, learned counsel submits that thepost of PTI is dying cadre and now under Rules, 2012, there is post ofTGT (Physical Education), which has higher qualifications, i.e., GraduateGwith Physical Education from recognised university. He submitsthat all posts of PTI have been converted into TGT, thus, fresh selection,if any, can be only on the post of TGT (Physical Education). He has alsoreferred to Rule 9(5) of Rules, 2012, which is to the following effect:-

“9(5). The present Classical & Vernacular (C&V) Cadre consistingHof the posts of Sanskrit Teachers, Hindi Teachers, Punjabi

Teachers, Physical Training Instructors (PTIs), Art & CraftTeachers (Drawing Teachers), Tailoring Teachers and TablaPlayers and governed by the Haryana State Education SchoolCadre (Group C) Service Rules, 1998 shall be converted to TGTin relevant subject and no further recruitment shall be made tothese categories when the present incumbent on the notificationof these rules vacate the post on his promotion, retirement or anyother purpose.”

67. Rule 2(h) defines TGT in following words:-

“(h) “TGT” means Trained Graduate Teacher in the relevantsubject appointed after notification of these rules and shallinclude 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

(iii) by transfer or deputation of anofficial already in service ofany 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 inthe establishment, who can be promoted as TGT (Physical Education).The submission cannot be accepted that all PTI in block have beenupgraded as TGT (Physical Education). Had the rule contemplated suchresult, there was no question of filling up TGT (Physical Education) by33% by promotion from PTI. This court had occasion to examine Rules,2012 in State of Haryana and Another Vs. Sandeep Singh andOthers, (2019) 6 SCC 453. writ petition was filed in the High Courtby teacher occupying the post of Drawing Teacher, he claimed thatDrawing Teacher has been converted into Trained Graduated Teacher(TGT) under Rule 9(5), hence, the writ petitioners were also entitled tobe promoted from the day their juniors were promoted as TrainedGraduate Teachers. This Court examined the Scheme of Rules, 2012elaborately and following was laid down in paragraphs 19 and 20:-

“19. The entire argument of the appellants is based upon theexpression used that C&V teachers governed by the 1998 Rules

Ashall be “converted to TGT in relevant subject”. The questionis whether such C&V teachers stand upgraded to the post ofTGT though, their promotion channel under the 1998 Rules wasto the post of Master which alone has been treated as TGT asdefined in Rule 2(h) of the 2012 Rules and in view of expresslanguage of Rule 7 which mandates that the appointment shall beBmade to the post of TGT only in accordance with the qualificationsprescribed in the 2012 Rules.

20. The reading of the Rules would show that C&V teachers aretreated to be TGT so as to avoid anomalous situation where theC&V teachers after the commencement of the 2012 Rules wouldCnot be governed by any set of Rules. Therefore, the expressionthat such C&V teachers stand converted to TGT is only to facilitatetheir service conditions to be governed by the 2012 Rules ratherthan to upgrade the C&V teachers as members of TGT cadre.The feeder and the promotional cadre cannot be treated on parDby virtue of the expression used in Rule 9(5) of the 2012 Rulesthat the C&V teachers shall be converted to TGT. Such conversionis only for limited purpose of the 2012 Rules being extended tothem 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 “cadre”.

ETherefore, such teachers cannot be treated to be part of TGTcadre. Such interpretation is further supported by the fact thatC&V Teacher is dying cadre and no further recruitment is to bemade in these categories.”

70. This Court in the above judgment has held that there is noFautomatic conversion, upgradation of C&V Teachers into TGT and onlyto facilitate their service conditions, they are to be governed by Rules,2012.

71. We in the present case are concerned with selection, whichwas undertaken in pursuance of advertisement No.6/2006 for 1983 postsGof PTI, result of which selection was declared on 10.04.2010. Challengewas made to the said selection in various writ petitions, which writ petitionswere allowed by learned Single Judge vide judgment dated 11.09.2012.The selection dated 10.04.2010 was set aside, quashed and theCommission was directed to hold fresh selection within period ofHfive 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 andprocess of recruitment initiated with the advertisement No.6/2006 hasto be brought to its logical end and for the purpose of selection in pursuanceof advertisement No.6/2006, Rules, 2012 shall not come into way. Wemay 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 theyare applicable to the posts included in the Service are herebyrepealed:

Provided that any order made or action taken under therules so repealed shall be deemed to have been made or takenunder 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 andhad not to be scrapped as is clear from the Scheme of Rules, 2012. Inany view of the matter, when the selection for 1983 posts of PTI wasset aside and the High Court directed to hold fresh selection, the selectionprocess was to be continued and completed under the orders of theHigh Court. We, thus, reject the submission of the learned counsel forthe Commission and the State that fresh selection cannot be held as perdirection of the learned Single Judge affirmed by the Division Bench.We, however, are of the view that selection initiated vide advertisementNo.6 of 2006has to be proceeded further from the stage the criterionwas arbitrarily changed by the Chairman. The completion of selectionhas to be only from amongst the candidates who had applied againstpost of PTI, including those who were selected.73. The learned Single Judge after quashing the select list publishedon 11.04.2010 directed for fresh selection on post of PTI. The learnedSingle Judge, however, did not issue appropriate consequential directionsfor holding the fresh selection. There was no defect in the advertisementdated 20.06.2006 and mode of selection as envisaged by public noticedated 28.12.2006. The arbitrariness crept thereafter from the stage ofscrapping the written test scheduled to take place on 20.07.2008. Thedirections ought to have been issued to complete the process from thatstage i.e. the stage of holding the written test. All the candidates whohad applied for the post of PTI including those selected, ought to havebeen permitted to take the written test. We need to clarify that in the

Afacts of the present case there was no requirement of fresh advertisementand inviting fresh applications. In the event fresh applications are called,large number of applicants who participated in the selection would havebecome over age. All the applicants who had applied in response toadvertisement No.6 of 2006 had right to participate in selection as percriterion notified on 28.12.2006. The direction of learned Single JudgeBneeds modification and clarification to the above effect.

74. We may also notice one more submission of the learned counselfor the appellant. Learned counsel for the appellant submits that inpursuance of selection dated 10.04.2010, the appellants were appointedand they have now continued for more than nine years and at this juncture,Cit is not equitable to throw out them from their posts. In the present case,result of the selection dated 10.04.2010 was published on 11.04.2010and the writ petitions were filed in May, 2010 itself, i.e., immediately.Selection was set aside by learned Single Judge on 11.09.2012. Thecontinuance of the appellants is only by way of interim order. This CourtDhas also passed an order on 29.11.2013 for maintaining status quo, whichorder has been continued till this date. When the continuance of personon post is by virtue of an interim order, the continuance is alwayssubject to outcome of the litigation. The displacement of appellants fromtheir posts is inevitable consequence of upholding of the judgment of theHigh Court. Constitution Bench of this Court in C. ChannabasavaihEEtc. Etc. Vs. State of Mysore and Others, AIR 1965 SC 1293 hasmade following observations in paragraph 9 in such situation, which isbeneficial to record, is as follows:-

“9. It is very unfortunate that these persons should be uprootedafter they had been appointed but if equality and equal protectionFbefore the law have any meaning and if our public institutions areto inspire that confidence which is expected of them we would befailing in our duty if we did not, even at the cost of considerableinconvenience to Government and the selected candidates do theright thing………………………...”

G75. In view of the foregoing discussions and conclusions, we disposeof these appeals with the following directions:

(i)The Commission shall conclude the entire selection processinitiated by the advertisement No.6 of 2006 as per criterionnotified on 28.12.2006 i.e. holding objective type written testHof 200 marks and viva voce of 25 marks. All the applicants

who had submitted applications in response to the aboveadvertisement including those who were selected shall bepermitted to participate in the fresh selection as directed.

(ii)The candidates who have been selected and have workedon the post of PTI shall not be asked to refund any of thesalary and other benefits received by them as against theirBworking on the posts. No refund shall also be asked fromthose candidates who after their selection worked and retiredfrom service.

(iii) The entire process be completed by the Commission withina period of five months from the date Commission startsworking after the present lockdown is over, which was thetime fixed by the learned Single Judge for completing theprocess.

(iv) The costs imposed by the Division Bench in paragraph 54 ofthe judgment of the High Court are deleted except the costsimposed 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 counselfor the parties, who have rendered valuable assistance to the Court inEdeciding these appeals.

Devika Gujral

Appeals disposed of.