Ramjit Singh Kardam vs Sanjeev Kumar on 8 April, 2020


Supreme Court of India

Ramjit Singh Kardam vs Sanjeev Kumar on 8 April, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, S. Ravindra Bhat

                                                   1


                                                                    REPORTABLE


                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION

                                CIVIL APPEAL NO.2103 OF 2020
                          (Arising out of SLP(C) No. 35373 of 2013)

         RAMJIT SINGH KARDAM & ORS.                          ...APPELLANT(S)

                                                 VERSUS

         SANJEEV KUMAR & ORS.                               ...RESPONDENT(S)

                                                 WITH

         Civil           Appeal   No.2104   of   2020[@ SLP(C)No.35471/2013],
         Civil           Appeal   No.2105   of   2020[@ SLP(C)No.35466/2013],
         Civil           Appeal   No.2107   of   2020[@ SLP(C)No.35857/2013],
         Civil           Appeal   No.2106   of   2020[@SLP(C)No.35811/2013],
         Civil           Appeal   No.2108   of   2020[@ SLP(C)No.39466/2013],

         Civil Appeal Nos.2164-2166 of 2020
         [@SLP(C)Nos.5275-5277/2014],

         Civil Appeal Nos.2168-2169 of 2020
         [@SLP(C)Nos.12403-12404/2014], and

         Civil Appeal No.2167 of 2020[@ SLP(C)No.10647/2014].




                                        J U D G M E N T

ASHOK BHUSHAN,J.

Signature Not Verified

Digitally signed by
ASHA SUNDRIYAL
Date: 2020.04.08

1.
18:21:43 IST
Reason: These appeals have been filed against the common

judgment dated 30.09.2013 of High Court of Punjab and
2

Haryana dismissing LPA filed by the appellants

affirming the judgment of learned Single Judge dated

11.09.2012 by which the Selection dated 10.04.2010

selecting appellants on the post of Physical Training

Instructor (PTI) was set aside. All the appeals

having been filed against the common judgment

involving common facts and questions of law, for

deciding the batch of appeals, it shall be sufficient

to refer pleadings in Civil Appeal No.2103/2020,

Ramjit Singh Kardam and others versus Sanjeev Kumar

and others.

2. The brief facts necessary to be noted for

deciding these appeals are: –

2.1. The Haryana Staff Selection Commission

(hereinafter referred to as Commission)

vide Advertisement No.6 of 2006 dated

20.07.2006 invited applications for various

posts enumerated in different category

numbers in the Advertisement. Under

category No.23, 1,983 posts of PTI

(Physical Training Instructor) were
3

advertised. The Advertisement mentioned the

educational qualifications for the post.

Advertisement contained a special

instruction in following words: –

“SPECIAL INSTRUCTIONS:

The prescribed essential
qualification does not entitle
a candidate to be called for
interview. The Commission may
short list the candidates for
interview by holding a written
examination or on the basis of
a rational criteria to be
adopted by the Commission. The
decision of the Commission in
all matters relating to
acceptance or rejection of an
application,
eligibility/suitability of the
candidates, mode of and
criteria for selection etc.
will be final and binding on
the candidates. No inquiry or
correspondence will be
entertained in this regard.”

2.2. In pursuance of advertisement for the posts

of PTI, 20,836 applications were received

by the Commission. The notification dated

28.12.2006 was published by the Commission

to the effect that the Commission has

decided to hold the written examination on
4

21.01.2007. Notification further mentioned

there shall be 100 objective type Multiple

Choice Questions, 60 Questions relating to

Academic Knowledge of the respective

subject for which a candidate is appearing

in the test and 40 Questions related to

General Knowledge, General English and

Hindi upto Matric Standard. Each question

was to carry two marks. The candidates were

required to secure minimum qualifying marks

in written test i.e. 50% for General

Category and 45% for SC/BC. Notification

further mentioned that Viva-voice will be

of 25 marks. The notification further

provided that candidates equal to three

times of the vacancies will be called for

interview based on their performance in the

written test. The written examination was

held on 21.02.2007.

2.3. A public notice was issued on 01.02.2007 by

the Commission that due to several
5

complaints/reports with regard to

malpractices and cheating committed in

written examination held on 21.01.2007,

Commission has decided to cancel the

aforesaid examination.

2.4. Another notice dated 11.06.2008 was issued

by the Commission re-notifying the written

examination for the PTI on 20.07.2008.

However, before the written examination

could take place on 20.07.2008, another

notice dated 30.06.2008 was issued by the

Commission cancelling the written

examination to be held on 20.07.2008.

Another notice dated 11.07.2008 was

published by the Commission to shortlist

the candidates for interview. The notice

mentioned that keeping in view the large

number of applications, Commission has

decided to shortlist eight times candidates

of the advertised post in the respective

category for interview on the basis of
6

essential academic advertised

qualification. Notice also mentioned the

minimum weighted score of each category.

2.5. On 18.07.2008, the interview schedule was

published by the Commission which provided

that Interview was notified from 02.09.2008

to 17.10.2008. 15,582 candidates appeared

in the interview. One member of the

Commission and one expert member headed

each Interview Committee from A to H.

Although the interview was completed in the

year 2008 itself, the Commission could

declare the result of the selection after

one and half years only on 10.04.2010 which

was published on 11.04.2010. At the end of

the result as published in the newspaper,

criteria adopted for selection was also

mentioned to the following effect: –

         “CRITERIA            ADOPTED          FOR
         SELECTION:

         The criteria adopted by the

Commission for making selection
is given below: –

7

                1)      Academic marks…………60 Marks
                     2)Marks obtained in the Viva
                       voice out of …………………………30
                       Marks

                     Total: 90- Marks”



3. Challenging the Select list dated 10.04.2010,

large number of writ petitions were filed in the

Punjab and Haryana High Court including CWP No.15656

of 2010, Sanjeev Kumar and others versus State of

Haryana and others. The writ petitioners before

filing writ petitions had obtained information under

Right to Information Act details of which information

were mentioned in the writ petition. Various grounds

were taken in the writ petition to challenge the

selection. The writ petitioners pleaded in the writ

petition that some of the candidates have been

awarded more than 25 marks in viva-voice. Further,

some of the candidates have been selected and

appointed who did not possess the requisite

qualification of certificate in Physical Education

conducted by Haryana Education Department or an

equivalent qualification recognized by Haryana

Education Department. The petitioners further pleaded
8

that once the criteria was laid down by the

Commission, the same was required to be followed

strictly while making the selection and it was not

proper to change the criteria. The petitioners

pleaded that criteria has been changed by the

respondent authority to get the desired result and in

order to bring the candidates within the zone of

selection in order to grant them undue benefits for

the reasons best known to the respondent authorities.

4. The Petitioner No.1 of CWP No.15656 of 2010

pleaded that out of 62 Candidates who have been

appointed in district Yamuna Nagar, 61 are less

meritorious as compared to petitioner No.1. The

petitioner No.1 although secured 41.68 marks in

academic qualifications but could get only 8 marks in

the interview. Petitioner further pleaded that all

other petitioners secured good marks in academic

qualifications but they received less marks in viva-

voice due to which they could not be included in the

Select list.

9

5. On an application given under RTI asking for a

copy of the criteria, it was only on 17.06.2010 the

criteria was supplied. The writ petitioners further

pleaded that authorities while making selection

neither adopted any rationale criteria nor selected

the candidates on the basis of merit. The criteria

was changed from time to time in order to select some

favourites. Entire selection appears to be a fraud

played upon the general public. 25 marks were

mentioned for viva-voice but when the result was

finalized the candidates were awarded marks more than

25 marks. Paragraph 51 of the W.P.No.15656 of 2010

enumerated the main points involved in the writ

petition.

“51. That the main law points involved in
the writ petition are: –

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

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

10

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

iv) Whether the marks for the viva-

voice were required to be
bifurcated under various heads?

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

vi) Whether the selection conducted
by the respondent – authorities
is fair transparent and
sustainable in the eyes of law?

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

viii)Whether the action of the
respondent-authorities is
arbitrary, discriminatory and
unsustainable in the eyes of
law?

ix) Whether the petitioners should
be allowed to suffer for no
fault on their part especially
when the petitioners possess
better academic record as
compared to the selected
candidates?”
11

6. In the writ petition No.15656 of 2010, following

prayers were made:-


i. relevant records of the case be
summoned;

ii. to issue a writ in the nature of
Certiorari quashing the selection
list Annexure P-9 dated 10.04.2010
and to issue a writ in the nature of
Mandamus directing the respondent
authorities to select and appoint
the petitioners as PTI’s and it is
further prayed that during the
pendency of the writ petition the
respondents may kindly be restrained
from appointing the selected
candidates to the posts of PTI’s.

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

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

v. Prior notices to the respondents may
kindly be dispensed with;

vi. To allow the petitioners to file
photostat copies of the Annexures;

vii. Costs of the writ petition be
awarded in favour of the petitioners
and against the respondents,
12

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

7. The selected candidates were also subsequently

impleaded as parties in most of the writ petitions

and repeated efforts were made to serve them.

Hundreds of selected candidates were duly served.

Written statements were also filed by selected

candidates in the writ petitions. The High Court

noticed that several respondents have not been served

due to various reasons. Rest of candidates were

served through substituted service for which public

notice was published in the daily “The Tribune” on

21.03.2012.

8. A counter affidavit was also filed by the

Commission opposing the writ petition. Learned Single

Judge had also called for the original record from

the Commission which were produced by the Commission

before the Court.

13

9. Learned Single Judge after hearing the counsel

for the parties and after perusing the record allowed

all the writ petitions by judgment and order dated

11.09.2012. Operative portion of the judgment of the

learned Single Judge is as follows: –

“…These writ petitions are thus
allowed. The purported selection made by
the Haryana Staff Selection Commission in
pursuance to the advertisement No.6/2006,
result whereof was published on 11.04.2010
relating to category No.23 for the posts
of PTIs, is hereby quashed. A direction is
issued to the Haryana Staff Selection
Commission to hold a fresh selection, in
accordance with law, within a period of
five months from the date of receipt of
certified copy of this order.

Photocopies of the original noting
files produced in Court as also the
purported criteria laid down by the
Commission dated 03.08.2008 have been got
prepared, kept in a sealed cover and
placed on the records of CWP No.15656 of
2010 to be opened only on Court orders.
Produced original records be handed over
to Mr. Harish Rathee, learned Senior
Deputy Advocate General, Haryana.

(AUGUSTINE GEORGE MASH)
JUDGE
11.09.2012”

10. LPA No.1594 of 2012 and several other LPAs were

filed before the Division Bench challenging the
14

judgment dated 11.09.2012. Apart from LPAs filed by

selected candidates, few of the LPAs were also filed

by some of the writ petitioners they being partly

dissatisfied by the order of the Single Judge as the

issue of ineligibility and disqualification of

selected candidates expressly raised by them have not

been gone into by learned Single Judge.

11. The State of Haryana as well as Haryana Staff

Selection Commission had also filed LPA challenging

the judgment of the learned Single Judge. All the

LPAs were heard and decided by the Division Bench

vide its judgment dated 30.09.2013. The Division

Bench upheld the order of learned Single Judge.

Operative portion of the judgment of the Division

Bench dated 30.09.2013 is as follows: –

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

i) LPA Nos. 1841 and 1903 of 2012
filed by the Haryana Staff
Selection Commission are
dismissed with cost of
Rs.50,000/- each to be
deposited with the High Court
15

Legal Services Committee
within a period of one month;

ii) LPA No.1562, 1831 to 1839,
1842 to 1855, 1879 to 1902,
1904 to 1917, 1997, 2002, 2028
of 2012; 248 & 262 of 2013
jointly filed by the State of
Haryana and the Haryana Staff
Selection Commission are
dismissed with cost of Rs.

10,000/-in each case to be
deposited with the High Court
Legal Services Committee
within one month;

iii) LPA Nos. 1555,1557,1592,1594,
1856 to 1860, 1870 to 1878,
1918 to 1920, 1950 of 2012;

         529 of 2013 filed by the
         selected      candidates     are
         dismissed     with    cost    of
         Rs.10,000/-     each    to    be
         deposited in the High Court
         Lawyer Welfare Fund within one
         month;

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

55) Photostat copies of the four files
containing original notings and decisions
taken by the Commission or its Chairman
from time to time, the decision dated
03.08.2008 have been retained and shall be
kept as a part of the judicial record. The
original record be returned to the
Commission under receipt.

56) Ordered accordingly. Dasti.”
16

12. These appeals have been filed by the selected

candidates whose selection had been set aside by

learned Single Judge and affirmed by the Division

Bench. The State of Haryana as well as Haryana Staff

Selection Commission had also filed Special Leave to

Appeal being SLP(Civil) No. 11143-11210 of 2014 which

was disposed of by this Court by following order

dated 30.07.2014: –

“Delay condoned.

The issue arising in this group of special
leave petitions is pending before this
Court in SLP(C) No.35373 of 2013 etc.
filed at the instance of selected
candidates. All the questions raised
herein would be open to the petitioner
State to be urged in SLP(C) No. 35373 of
2013. In that view of the matter, we do
not consider it necessary to issue formal
notice in these special leave petitions.

Accordingly, they are not being
entertained. The special leave petitions
are disposed in terms of the above.”

13. While entertaining the SLP No.35373 of 2013,

Ramjit Singh Kardam and others versus Sanjeev Kumar

and others, and other special leave petitions, this

Court passed following order on 29.11.2013: –

“Issue Notice.

17

Returnable in three weeks.

Status Quo, as on today shall be
maintained in the meantime.”

14. These appeals were heard on various dates by this

Court. On 22.01.2020, this Court passed following

order: –

      “Hearing      to       continue         tomorrow
      (23.01.2020).

Learned counsel for the State may produce
the original record of selection.”

15. Further, when the matter was heard on

23.01.2020, learned counsel for the State as well as

Commission produced certain original records on which

date following order was passed: –

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

Heard in part.

List for continuation of arguments on
29.01.2020.

18

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

16. Matter was further heard by this Court on

29.01.2020 when following order was passed:-

“We have heard learned counsel for the
parties.

Learned counsel appearing for the
Commission has placed before us further
original records i.e. File No.1 containing
correspondence and another original file.
On the earlier occasion learned counsel
for the Commission has produced the
original records which we have noticed in
our order dated 23.01.2020. The register
containing marking by expert member of the
Commission were produced from which it
appears that the expert member has graded
the candidates in A, B and C category
whereas the member of the Commission has
given marks out of 30. On our query as to
whether there was any guidelines to
reflect the evaluation by the Commission
member or how both were to be correlated,
learned counsel for the Commission could
not give any reply.

Learned counsel for the petitioners
has further submitted that in above facts
situation, Commission be directed to file
an affidavit explaining the relevant
procedure and the guidelines, if any, with
regard to selection in question and other
selection at the relevant time. With
regard to letter dated 03.08.2008, which
was produced in an envelope on the last
occasion, learned counsel for the
Commission submitted that the said letter
as well as the proceeding sheets are not
19

on the original records which have been
produced today.

Learned counsel for the respondents,
who were writ petitioners, submits that
the State Government may also be directed
to give details of the vacancies, existing
as on date in the relevant PTI Cadre.

We allow two weeks’ time to the
learned counsel for the Commission to file
an affidavit giving details as indicated
above after serving the same on the
learned counsel for the petitioners, who
may also file response thereof within a
week thereafter.

List on 26.02.2020.”

17. In pursuance of the order of this Court dated

29.01.2020, an affidavit dated 11.02.2020 sworn by

Isha Kamboz, Secretary, Haryana Staff Selection

Commission, has been filed.

18. For the appellants, we have heard Shri Kapil

Sibal, learned senior counsel, Shri V.Giri, learned

senior counsel, Shri Ravindra Srivastava, learned

senior counsel, Shri Navneeti Prasad Singh, learned

senior counsel, Shri Rameswar Malik, learned senior

counsel and other learned counsel. Shri Manoj Swarup

has appeared for the respondent writ petitioners. We
20

have also heard other counsel appearing for respondent

writ petitioners. Shri A.K. Sinha and other counsels

for intervenors. We have heard Shri Anil Grover,

Additional Advocate General for State of Haryana as

well as Haryana State Selection Commission.

19. Learned counsel for the appellants challenging

the judgment and order of both learned Single Judge

and Division Bench of the High Court submits that

there were no sufficient grounds and materials before

the High Court to set aside the entire selection,

which was held for 1983 posts of PTI. It is submitted

that the respondent writ petitioners have participated

in selection without any demur or protest, hence, they

are not entitled to challenge the selection after

having been declared unsuccessful. On the principle of

estoppel, they are precluded from challenging the

selection.

20. It is submitted that criteria for selection was

uniformly applied to all the candidates and respondent

writ petitioners having not challenged the criteria of
21

selection cannot be allowed to challenge the criteria

after declaration of the select list.

21. It is submitted that there are no allegations of

any mala fide against the Chairman or any member of

the Commission or any candidate. The High Court

committed error in accepting the grounds of challenge

by the writ petitioners that those candidates who

secured good marks in Academics were deliberately

given less marks in the viva-voice so that they may go

out of select list. Insofar as not holding of the

written examination it is submitted that there were

grounds for scrapping the written examination which

was held on 01.02.2007.

22. The Commission decided not to hold the written

examination and proceeded to hold the selection on the

basis of criteria which was applied in the earlier

selection i.e. 2003 selection i.e. 60 marks for

Academics and qualification and 30 marks on the Viva-

voice to which no exception can be taken by respondent

writ petitioners. The criteria which was applied in
22

the Selection was signed by all members of the

Commission on 03.08.2008 to which no exception can be

taken by the respondent writ petitioners.

23. The Courts cannot start looking on the marks

allocated in Viva-voice nor the same is in the domain

of the Court. The appellants are now over age and

having worked for 10 about years, at this stage, they

cannot be displaced. Increase of marks from 25 to 30

for viva-voice was not violative of any norms.

Jurisdiction under Article 226 is not an investigative

jurisdiction but it is adjudicatory jurisdiction.

24. Shri Manoj Swarup, learned senior counsel

appearing for the respondent writ petitioners submits

that the writ petitioners were unaware of the criteria

which was to be applied by the Commission in the

Selection and they came to know about the criteria of

60 marks for Academics Qualifications and 30 marks for

Interview only by final result dated 10.04.2010 when

it was mentioned in the final result.
23

25. The Commission could not have held any selection

without declaring the criteria beforehand. The written

examination which was re-notified on 11.06.2008 was

not proceeded with without any valid reason. Written

examination is sure mode of finding out merit in the

candidates and looking to number of the candidates

which was more than 20,000, the Commission has rightly

taken a decision to hold a written test of 200 marks

and interview of 25 marks which ought to have adhered

by the Commission.

26. The Commission never informed the candidates that

no written examination shall be held. The High Court

had summoned the original records and found out from

the original records that those candidates who were

meritorious as per the qualification and academic

marks were deliberately given marks ranging from 7 to

13 so that they may go out of the Select list. Those

candidates who had poor academic records were given

marks in interview ranging from 18 to 28 so that they

may get selected.

24

27. The Commission after taking a decision on

30.06.2008 not to hold the written examination,

decided to shortlist the candidates for interview on

the basis of marks obtained by them in the academics

and educational qualification and called the

candidates 8 times of the number of vacancies. Minimum

marks were also prescribed for candidates to be called

in the interview. The Commission subsequently did not

even adhere to their notification dated 11.07.2008 and

decided to call all eligible candidates for interview

with intend to help those who could not have come in

the criteria of 8 times of the number of vacancies on

the basis of Academic record.

28. The Commission from the very beginning has

proceeded in a manner which indicate that the merit

criteria was deliberately given up to accommodate

favourites. The entire selection has rightly been set

aside by learned Single Judge and affirmed by the

Division Bench. The respondent writ petitioners were

meritorious and deserved selection in event the

Commission could have proceeded to examine the
25

candidates on merit and as per the criteria of holding

written examination or screen the candidates 8 times

of the number of vacancies. The petitioner after

coming to know about the criteria from the result

dated 10.04.2010 immediately filed writ petition in

May, 2010 challenging the criteria. The undue delay in

declaring the result i.e. one and a half year creates

doubt about the fairness of the Commission in

declaring the result.

29. Shri Swarup submits that entire selection having

scrapped by the High Court, this Court may direct for

holding of fresh selection enabling the petitioners to

participate and get selected on their merit. It is

submitted that continuance of appellants on the basis

of interim order should not be given any credence. The

Commission in conducting the selection on the post of

PTI has not acted as per norms and requirement of law.

Decision to scrap the written test and further not to

hold the written test and all the subsequent steps

having taking by Chairman, who alone was not competent

to take decision, were without authority of law. It is
26

submitted that decision dated 03.08.2008 on which the

reliance has been placed by the Commission was never

taken on 03.08.2008 and when the learned Single Judge

asked for the criteria, the letter dated 03.08.2008

was prepared and got signed by all the members and

submitted in the High Court. The High Court has

rightly refused to believe that criteria was

formulated on 03.08.2008 by the Commission.

30. Learned counsel for the Commission as well as

State of Haryana submits that criteria which was

applied of 60 marks and 30 marks was the criteria

which was earlier applied also in 2003. It was

submitted that insofar allocation of marks by member

and expert there are no guidelines or materials to

indicate how the marks were awarded in the viva-voice.

He further submits that in view of the Haryana School

Education (Group-C) State Cadre Service Rules, 2012,

the post of PTI is converted as TGT and PTI have

become a dying cadre. He submits that at present there

are no vacancies on the post of PTI which has been

declared as dying cadre. Fresh selection can only be
27

held for the post of TGT (Physical Education) for

which qualifications have also been changed.

31. Shri Kapil Sibal, learned senior counsel

appearing for appellant in his rejoinder submits that

even though 1496 candidates got high marks in the

academics, they are only 10% of the total number of

candidates and only few hundreds got 20-27 marks in

the viva-voce. From where High Court got the material

to hold that 90 percent candidates who performed

poorly in the Academics got higher marks in the viva-

voce? The Commission has said that marks of the

Academics and qualifications were not before the

Interview Board. All 8 members of the Commission

cannot be said to have conspired to follow a pattern

of work.

32. From the pleadings on the records and submissions

made by the learned counsel for the parties, following

points arise for consideration: –

i) Whether the respondent writ petitioners who

had participated in the selection were
28

estopped from challenging the selection in

the facts of the present case?

ii) Whether the respondent writ petitioners could

have challenged the criteria of selection

applied by Commission for selection after

they had participated in the selection?

iii) Whether the decision dated 30.06.2008 to

cancel the written examination and the

decision dated 11.07.2008 to call the

candidates for interview 8 times number of

vacancies on minimum percentage of marks as

fixed therein and the decision dated

31.07.2008 to call all the eligible

candidates for interview were arbitrary

decision to change selection criteria

published on 28.12.2006, which have effect of

downgrading the merit in the Selection?

iv) Whether it was obligatory for the Commission

as a body to take all decisions pertaining to

Selection on the post of PTI including the
29

decision of not holding written examination,

decision to screen on the basis 8 times of

vacancies and decision to call all eligible

candidates and whether aforesaid decisions

were taken by the Chairman alone?

v) Whether on 03.08.2008, a decision was taken

by the commission fixing the criteria for the

selection on the post of PTI which was signed

by all the members on 03.08.2008 as claimed

by the Commission?

vi) Whether without there being any specific

allegations of mala fide against the Chairman

and members of the Commission and without

they having been impleaded by name as party

respondents, the writ petitioners could have

challenged the allocation of marks in viva-

voce and High Court was right in accepting

the claim that candidates who got highest

marks for academic qualifications ranging

between 40 to 48.74 marks have been awarded
30

just 7 to 9 marks in the viva-voce and as

against it there are hundreds of selected

candidates who have been awarded 20 to 27 out

of 30 marks in the viva-voce to ensure that

they outclass the academically bright

candidates?

vii) Whether no fresh selection can be held as

directed by learned Single Judge since as per

2012 Rules, the post of PTI has been declared

as a dying cadre and the post has merged into

the post of TGT Physical Education?

33. Before we proceed to consider the submissions of

the learned counsel for the parties and the points

formulated as above, we need to notice the

constitution of Haryana Staff Selection Commission,

relevant notifications and orders governing its

powers and procedures. By notification dated

28.01.1970, the Governor of Haryana, in exercise of

power conferred by Article 309 of the Constitution of

India constituted the Subordinate Services Selection
31

Board. All appointments to non-gazetted class-III

posts under the Haryana Government except

appointments of officers and employees of Punjab &

Haryana High Court provided for in accordance with

Article 229 of the Constitution of India were

mandated to be made on the advice of the Board. Vide

notification dated 09.12.1997, the words “Subordinate

Services Selection Board” were substituted by

“Haryana Staff Selection Commission”. Vide

notification dated 28.07.1998, sub-para (d) of para 6

was substituted, according to which the Commission

was empowered to devise the mode of selection and fix

the criteria for selection of post for which

requisition is sent to it by a Department or an

office, as it may deem appropriate and the criteria

for selection of posts fixed earlier by the

Board/Commission shall be deemed to have been fixed

under this sub-paragraph. Vide notification dated

21.06.2007, paragraph 1 was substituted with effect

from 20.04.2007, according to which the Commission

shall consist of nine members including the Chairman,

out of whom a minimum of two members would be such as
32

have held office for at least ten years either under

the Government of India or under the Government of

the State. In this notification sub-para 4 reads as

follows:-

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

“(d) methods of recruitment and
the principles to be followed in
making appointments to the Group
B, Group C and Group D posts
under the State Government. The
Commission shall devise the mode
of selection and fix the criteria
for selection of posts for which
requisition is sent to it by a
department of an office, as it
may deem appropriate and the
criteria for the selection of
posts fixed earlier by the
Board/Commission shall be deemed
to have been fixed under the
clause.”

34. As per notifications mentioned above, the

Commission was empowered to devise the mode of

selection and fix the criteria for selection of posts

for which request was sent to it by department or an

office. Sub-paragraph 4 of the notification dated

20.04.2007 as extracted above, which was substituted
33

w.e.f. 10.01.2006 empowered the Commission providing

that Commission shall devise the mode of selection

and fix the criteria for selection of posts and for

which request is sent by a department or an office.

The selection on various posts was to be conducted as

per the criteria fixed by the Commission. There are

no separate statutory rules providing for criteria

for recruitment for different posts including the

post of PTI with which we are concerned in these

appeals.

35. We having noticed that the power is vested in the

Commission to fix the criteria for selection, we now

proceed to consider points for determination.

Point Nos.1 and 2

36. Learned counsel for the appellant at very outset

contended that the writ petitions filed by the

respondent challenging the select list dated

10.04.2001 ought not to have been entertained by the

High Court since the respondent having participated

in the selection without any demur or protest, they
34

are estopped from challenging the selection. The

submission is refuted by the respondent contending

that the above principle of estopple is not

applicable in the facts of the present case. The

petitioner being not even aware of the criteria,

which was to be applied for selection, which they

came to know only after select list was published,

there was no occasion to make any challenge by the

respondents before the above date.

37. The preposition that a candidate, who

participates in a selection without a demur taking a

calculated chance to get selected cannot turn around

and challenge the criteria of selection and the

constitution of the selection committee is well

settled. The appellants have placed reliance on

judgment of this Court in Madan Lal and Others Vs.

State of J&K and Others, (1995) 3 SCC 486; K.A.

Nagamani Vs. Indian Airlines and Others, (2009) 5 SCC

515; Manish Kumar Shahi Vs. State of Bihar and

Others, (2010) 12 SCC 576; Madras Institute of

Development Studies and Another Vs. K.

Sivasubramaniyan and Others, (2016) 1 SCC 454 and
35

Ashok Kumar and Another Vs. State of Bihar and

Others, (2017) 4 SCC 357.

38. In Madan Lal and Others(supra), this Court laid

down following in paragraph 9:-

“9. ……………………….It is now well settled that
if a candidate takes a calculated chance
and appears at the interview, then, only
because the result of the interview is not
palatable to him, he cannot turn round and
subsequently contend that the process of
interview was unfair or the Selection
Committee was not properly constituted. In
the case of Om Prakash Shukla v. Akhilesh
Kumar Shukla
, 1986 Supp SCC 285, it has
been clearly laid down by a Bench of three
learned Judges of this Court that when the
petitioner appeared at the examination
without protest and when he found that he
would not succeed in examination he filed
a petition challenging the said
examination, the High Court should not
have granted any relief to such a
petitioner.”

39. The above preposition has been reiterated in

other judgments of this Court noted above. In the

present case, whether the respondents-writ

petitioners are estopped from challenging the

selection? While noticing the facts of the case, we

have noted above that both appellants and the

respondents had submitted applications in pursuance
36

of advertisement dated 28.07.2006 No.6/2006. In

advertisement, it was provided that the Commission

may shortlist the candidates for interview by holding

a written examination or on the basis of a rational

criteria to be adopted by the Commission. The

Commission on 28.12.2006 published the criteria for

calling the candidates for interview. Notice dated

28.12.2006 provided that written examination shall be

held for post of PTI on 21.01.2007, on 100 objective

type multiple choice questions, each question

carrying two marks. The notification also prescribed

the minimum qualifying marks- 50% for General

category, SC BC and ESM 45% and 25% marks was

assigned to the viva voce. The above criteria was

implemented and written examination was conducted on

21.01.2007, which examination was cancelled citing

complaints regarding malpractices in the written

examination. Further notice dated 11.06.2008 was

published fixing 20.07.2008 for written examination

as per criteria earlier notified. Before the above

examination could take place, by public notice dated

30.06.2008, it was cancelled. Another public notice
37

dated 11.07.2008 was published where Commission

decided to shortlist eight times the candidates of

the advertised post with minimum weightage secured in

each category. The said shortlisting was also given

up by notice dated 31.07.2009 when it was decided to

call all eligible candidates for interview.

Commission did not publish any criteria or marks on

the basis of which interview was to be held. The

criteria, which was published by the Commission on

28.12.2006, 11.06.2008 and 11.07.2008 were given up

step by step and no criteria was published for

interview, which was scheduled to take place in from

2nd September to 17th October, 2008. When Commission

had not published any criteria on the basis of which

candidates were going to be subjected for selection

process and the candidates participated in the

selection without knowing the criteria of selection,

they cannot be shut out from challenging the process

of selection when ultimately they came to know that

Commission step by step has diluted the merit in

selection. When candidate is not aware of the

criteria of selection under which he was subjected in
38

the process and the said criteria for the first time

is published along with final result dated

10.04.2010, he cannot be estopped from challenging

the criteria of selection and the entire process of

selection. Further when the written examination as

notified earlier was scrapped and every eligible

candidate was called for interview giving a go bye to

a fair and reasonable process for shortlisting the

candidates for interview, that too only by Chairman

of the Commission whereas decision regarding criteria

of selection has to be taken by Commission, the

candidates have every right to challenge the entire

selection process so conducted. This Court in Raj

Kumar and Others Vs. Shakti Raj and Others, (1997) 9

SCC 527 held that when glaring illegalities have been

committed in the procedure to get the candidates for

examination, the principle of estoppel by conduct or

acquiescence has no application. Referring to

judgment of this Court’s judgment in Madan Lal

(supra), this Court laid down following in paragraph

16:-

39

“16. …………………………………………The entire procedure
is also obviously illegal. It is true, as
contended by Shri Madhava Reddy, that this
Court in Madan Lal v. State of J&K, (1995)
3 SCC 486 and other decisions referred
therein had held that a candidate having
taken a chance to appear in an interview
and having remained unsuccessful, cannot
turn round and challenge either the
constitution of the Selection Board or the
method of selection as being illegal; he
is estopped to question the correctness of
the selection. But in his case, the
Government have committed glaring
illegalities in the procedure to get the
candidates for examination under the 1955
Rules, so also in the method of selection
and exercise of the power in taking out
from the purview of the Board and also
conduct of the selection in accordance
with the Rules. Therefore, the principle
of estoppel by conduct or acquiescence has
no application to the facts in this case.
Thus, we consider that the procedure
offered under the 1955 Rules adopted by
the Government or the Committee as well as
the action taken by the Government are not
correct in law.”

40. One more judgment of this Court which supports

the view taken by the High Court is Bishnu Biswas and

others Union of India and others, (2014) 5 SCC 774.

An advertisement was published calling applications

for appointment to the post of Group D staff. The

Recruitment Rules only provided for a written

examination having 50 maximum marks. After holding
40

written examination notice was issued calling the

successful candidates for interview. Although such

interview was not part of the recruitment process, a

select list was published which was challenged in the

Tribunal. The Tribunal returned a finding that the

manner in which marks have been awarded in the

interview to the candidates indicated lack of

transparency. The High Court upheld the reasoning of

the Tribunal but modified the order to the extent of

continuing the recruitment process from the point it

stood vitiated. This Court laid down following in

paragraphs 19 and 20:

“19. In the instant case, the rules of the
game had been changed after conducting the
written test and admittedly not at the
stage of initiation of the selection
process. The marks allocated for the oral
interview had been the same as for written
test i.e. 50% for each. The manner in which
marks have been awarded in the interview to
the candidates indicated lack of
transparency. The candidate who secured 47
marks out of 50 in the written test had
been given only 20 marks in the interview
while a large number of candidates got
equal marks in the interview as in the
written examination. Candidate who secured
34 marks in the written examination was
given 45 marks in the interview. Similarly,
another candidate who secured 36 marks in
the written examination was awarded 45
41

marks in the interview. The fact that today
the so-called selected candidates are not
in employment, is also a relevant factor to
decide the case finally. If the whole
selection is scrapped most of the
candidates would be ineligible at least in
respect of age as the advertisement was
issued more than six years ago.

20. Thus, in the facts of this case the
direction of the High Court to continue
with the selection process from the point
it stood vitiated does not require
interference. In view of the above, the
appeals are devoid of merit and are
accordingly dismissed. No costs.”

41. The Division Bench of the High Court is right in

its conclusion that the selection criteria, which saw

the light of the day along with declaration of the

selection result could be assailed by the

unsuccessful candidates only after it was published.

Similarly, selection process which was notified was

never followed and the selection criteria which was

followed was never notified till the declaration of

final result, hence, the writ petitioners cannot be

estopped from challenging the selection. We, thus,

hold that the writ petitions filed by the petitioners

could not have been thrown on the ground of estoppel

and the writ petitioners could very well challenge
42

the criteria of selection applied by the Commission,

which was declared by the Commission only at the time

of declaration of the final result. We, thus, answer

point Nos. 1 and 2 as follows:-

(i) The writ petitioners, who had participated

in the selection are not estopped from

challenging the selection in the facts of

the present case.

(ii) The writ petitioners could have very well

challenged the criteria of selection, which

was declared by the Commission only in the

final result declared on 10.04.2010.

POINT NOS.3, 4 AND 5

42. The selection and appointment on post borne on

the State establishment provides an opportunity to

citizens of public employment. The personnel who man

the civil posts in State apart from carrying out

objectives and policies of State also serve as source

of sustenance for their families. The selection and

appointment on post in the State have to conform to

the fundamental rights guaranteed to the citizens

under Articles 14 and 16. The objective of a State in

selecting persons into public service has always been
43

to select the best and most suitable person. Justice

O. Chinnappa Reddy, J. speaking for this Court in

Lila Dhar vs. State of Rajasthan and others, (1981) 4

SCC 159, had laid down that open competition has

been accepted universally as the gateway to public

services. In paragraphs 4 and 5 following has been

laid down:

“4. The object of any process of selection
for entry into a public service is to
secure the best and the most suitable
person for the job, avoiding patronage and
favouritism. Selection based on merit,
tested impartially and objectively, is the
essential foundation of any useful and
efficient public service. So, open
competitive examination has come to be
accepted almost universally as the gateway
to public services.

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

Competitive examinations were
the answer to the twin problems
represented by democracy and the
requirements of good
administration. They were the means
by which equality of opportunity
was to be united with
efficiency…. By this means
favouritism was to be excluded and
the goal of securing the best man
for every job was to be achieved.

            Open   competitive    examinations
        are    a     peculiarly     democratic
                      44


institution. Any qualified person
may come forward. His relative
competence for appointment is
determined by a neutral,
disinterested body on the basis of
objective evidence supplied by the
candidate himself. No one has
‘pull’; everyone stands on his own
feet. The system is not only highly
democratic, it is fair and
equitable to every competitor. The
same rules govern, the same
procedures apply, the same
yardstick is used to test
competence.”

5. How should the competitive examination
be devised? The Kothari Committee on
Recruitment Policy and Selection Methods
in their report said:

“A system of recruitment almost
totally dependent on assessment of
a person’s academic knowledge and
skills, as distinct from ability to
deal with pressing problems of
economic and social development,
with people, and with novel
situations cannot serve the needs
of today, much less of tomorrow….
We venture to suggest that our
recruitment procedures should be
such that we can select candidates
who can not only assimilate
knowledge and sift material to
understand the ramifications of a
situation or a problem but have the
potential to develop an original or
innovative approach to the solution
of problems.”

It is now well-recognised that while a
written examination assesses a candidate’s
45

knowledge and intellectual ability, an
interview-test is valuable to assess a
candidate’s overall intellectual and
personal qualities. While a written
examination has certain distinct
advantages over the interview-test there
are yet no written tests which can
evaluate a candidate’s initiative,
alertness, resourcefulness,
dependableness, cooperativeness, capacity
for clear and logical presentation,
effectiveness in discussion, effectiveness
in meeting and dealing with others,
adaptability, judgment, ability to make
decision, ability to lead, intellectual
and moral integrity. Some of these
qualities may be evaluated, perhaps with
some degree of error, by an interview-
test, much depending on the constitution
of the Interview Board.”

43. In the above judgment this Court has elaborately

considered the merit of selection of written

examination as well as usefulness of interview test.

The above observations by this Court were quoted with

approval by the Constitution Bench of this Court in

Ashok Kumar Yadav and others vs. State of Haryana and

others, 1985(4) SCC 417. In paragraph 23 following

was laid down:

“23. This Court speaking through Chinnappa
Reddy, J. pointed out in Lila Dhar v.
State of Rajasthan
that the object of any
process of selection for entry into public
service is to secure the best and the most
46

suitable person for the job, avoiding
patronage and favouritism. Selection based
on merit, tested impartially and
objectively, is the essential foundation
of any useful and efficient public
service. So open competitive examination
has come to be accepted almost universally
as the gateway to public services. But the
question is how should the competitive
examination be devised? The competitive
examination may be based exclusively on
written examination or it may be based
exclusively on oral interview or it may be
a mixture of both. It is entirely for the
Government to decide what kind of
competitive examination would be
appropriate in a given case………………”

44. After the advertisement of the vacancies of PTI,

the Commission issued a public notice on 28.12.2006

deciding to hold a written examination of 200 marks

and viva voce test of 25 marks to select the best

suitable candidates for 1983 posts of PTI. The public

notice further contemplated minimum qualifying marks

50% for general category and 45% for SC and BC and

40% for ESM. The above criteria evolved by the

Commission for selection on the posts was implemented

by holding the written examination on 21.01.2007

which examination was cancelled after receiving some

complaints and reports regarding malpractices in
47

examination. Even though examination was cancelled

but the Commission continued with the same criteria

for completing the selection which was so notified on

11.06.2008 again in which examination on the same

pattern was to take place on 20.07.2008. On

30.06.2008 a type note by the Superintendent

(Recruitment-I) was prepared mentioning that the

Chairman had ordered that written test for the posts

of DPE, Art and Craft Teacher and PTI, Education

Department, Haryana, scheduled to take place, may be

“cancelled on administrative reasons”. The note dated

30.06.2008 was approved by the Chairman and he also

approved the notice to be published for cancellation

of the proposed written examination, neither the note

nor the order of Chairman approving the note give any

indication of “administrative reasons” for

cancellation of the examination. Another important

change which was effected in the criteria for

selection was the notification with the approval of a

note dated 10.07.2008 which mentioned that the worthy

Chairman had issued oral direction that in respect of

advertisement No.6 of 2006 Category No.23, candidates
48

are required to be short-listed 8 times of the

vacancy and called for interview. Short-listing was

to be done on the percentage of the marks of the

candidates with minimum percentage mentioned therein.

The Chairman on 11.07.2008 approved the notice to be

published in the Newspapers with detail regarding

short-listing of the candidate’s category wise with

minimum percentage. The above criteria was also given

up when another note dated 31.07.2008 was approved by

the Chairman where the Chairman decided that all the

eligible candidates be called for interview changing

the earlier criteria. The interview was fixed between

02.09.2008 and 17.10.2008 and the candidates were

interviewed by eight Committees.

45. The above sequence of events indicates that in

accordance with the “special instruction” extracted

above the Commission decided the criteria for calling

the candidates for the selection as holding of

written examination of 200 marks and interview for 25

marks which was the perfect criteria looking to the

number of the candidates i.e. 20836 who had applied
49

in pursuance of the advertisement for the post of

PTI. The criteria was implemented by holding a

written test on 21.07.2007 which was cancelled due to

some complaints. The written test was again notified

for 20.07.2008 which was withdrawn by notice

published on 30.06.2008, the earlier criterion was

given a go bye by another notification dated

11.07.2008. The above indicates that the standard on

which candidates are to be screened for selection was

downgraded by Chairman of his own. When the number of

candidates who applied against certain posts are

enormously large, short-listing has always been

treated as an accepted mode to correctly value the

work and merit of the candidate. The Division Bench

of the High court on the alteration of the mode of

selection as noticed above has made following

observation in paragraph 37 of the judgment:

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

50

Was the Chairman competent to take
policy decisions like ‘selection criteria’
or ‘mode of selection’?

46. As per the notification extracted above it is the

Commission, who “shall devise the mode of selection

and fix the criteria for selection.” The said power

has to be exercised in a reasonable and fair manner

to advance the purpose and object of selection. Even

if it is assumed for the sake of the argument that

the Commission can change the criteria of selection

from time to time, the said power has to be exercised

not in an arbitrary manner.

47. We may in this context refer to three-Judge Bench

judgment of this Court in Tamil Nadu Computer Science

BED Graduate Teachers Welfare Society(1) vs. Higher

Secondary School Computer Teachers Association and

others, 2009(14) SCC 517. In the above case Computer

instructors were appointed on contract basis to

various Schools. The Government decided to hold a

special test by the Teacher Recruitment Board for

selection of computer instructors. On 10.10.2008 the
51

State Government took decision that minimum

qualification marks would be 50%. Special Recruitment

Test was announced as 12.10.2008. On the night of

12.10.2008 a list of candidates for appointment to

the post of computer instructors based on the special

recruitment test was put on the Internet. While

publishing the said marks of the candidates, it was

made clear that all candidates who have secured 35%

marks in the test would be called for certificate

verification. The State Government reduced the

minimum qualifying marks to 35%. This Court did not

approve the reduction of qualifying marks from 50% to

35%. Following was laid down in paragraph 33:

“33. We, however, cannot hold that the
subsequent decision of the Government
thereby changing qualifying norms by
reducing the minimum qualifying marks from
50% to 35% after the holding of the
examination and at the time when the
result of the examination was to be
announced and thereby changing the said
criteria at the verge of and towards the
end of the game as justified, for we find
the same as arbitrary and unjustified.
This Court in Hemani Malhotra v. High
Court of Delhi,(2008) 7 SCC 11, has held
that in recruitment process changing rules
of the game during selection process or
when it is over are not permissible.

52

48. Learned counsel for the appellant has submitted

that judgments of this Court laying down the criteria

for selection cannot be changed during the course of

selection has been referred to a larger Bench by a

judgment of this Court in Tej Prakash Pathak and

others vs. Rajasthan High Court and others, 2013(4)

SCC 540, hence the judgment of this Court laying down

the criteria cannot be changed during the course of

the selection is yet to be tested. For the purposes

of the present case we proceed on the assumption that

even if the criteria can be changed by selecting body

from time to time, the said change cannot be affected

arbitrarily. The present is a case where change in

criteria has been affected and altered arbitrarily

with the object of down-grading and not up-grading

the standards of selection. The High Court did not

commit any error in not upholding the change of

criteria effected after start of selection process

with which finding we fully concur.

49. The notifications issued under proviso to Article

309 of the Constitution of India specifically
53

provides that the Commission shall devise the mode of

selection and fix the criteria for selection of

posts. The power to devise the mode of selection and

fix the criteria was, thus, entrusted to the

Commission. Commission is a multi-member body, which

acts collectively. The Commission in the counter

affidavits filed before High Court or this Court has

not brought any rules or resolution of the Commission

by which power of the Commission to devise the mode

of selection and fix the criteria have been delegated

to any other member including the Chairman. In

Principles of Administrative Law, M.P. Jain & S.N.

Jain, 6th Edition, writes in Chapter XXII states:-

“When power is conferred on a multi-member
body, the power ought to be exercised by
the concerned body; the power cannot be
exercised either by the chairman alone or
by one of its members. This can be done
only if the body concerned delegates power
to the chairman or a single member to
discharge certain functions on its
behalf.”

50. When there are no statutory rules regarding

allocation of business of the Commission or

delegating its business to members or Committee, the
54

Commission could very well by its resolution devise

its own mode of exercising such power or function,

which preposition has been laid down by this Court by

a Constitution Bench in Naraindas Indurkhya Vs. The

State of Madhya Pradesh and Others, (1974) 4 SCC 788

wherein in paragraph 17 following was stated:-

17. ……………………… Now we do not dispute the
general proposition that when a power or
function is given by the statute to a
corporate body and no provision is made in
the statute as to how such power or
function shall be exercised, the corporate
body can by a resolution passed at the
general meeting devise its own mode of
exercising such power or function, such as
authorising one or more of the members to
exercise it on behalf of the Board…………………”

51. The Division Bench of the High Court after

pursuing the original records, which was summoned by

it from the Commission has returned a finding that

the decision of the Commission dated 30.06.2008,

11.07.2008 as well as 31.07.2008 have all been taken

by the Chairman alone, which was proved from original

records containing the relevant notes and approval by

the Chairman. The alteration of criteria, thus, was

sole handi-work of the Chairman, which decision was
55

not the decision of the Commission. It is not even

claimed in the affidavit filed before the High Court

or before this Court that said decisions were

decisions taken by the Commission. The conclusion

is, thus, inescapable that criteria for conducting

selection for the post of PTI as was published on

28.12.2006 was altered by the Chairman step by step

completely giving a go bye to the method of merit

selection. The statutory notifications when entrust

the Commission to devise the mode of selection and

fix the criteria and the Commission being multi-

member body, Chairman alone was not competent to

alter the mode of selection and the criteria, which

was fixed and published for conducting the selection

for the post of PTI.

52. Now, we come to the decision dated 03.08.2008,

which was a decision fixing the criteria for

selection signed by all the members of the

Commission, the High Court after minutely looking

into the original records has held that in the

original records, which was produced before the High

Court by the Commission, there is no mention of the
56

criteria for making selection dated 03.08.2008 nor

the said one page decision was part of the original

records. The said one-page decision was separately

produced before the High Court and before us.

Learned counsel for the Commission have placed that

one-page decision in an envelope before us also which

we have also perused. The Division Bench of the High

Court in paragraph 42 has dealt with the decision

dated 03.08.2008 and has affirmed the findings of the

learned Single Judge that the said decision dated

03.08.2008 was prepared only when learned Single

Judge directed the Commission to produce the criteria

of selection. Division Bench of the High Court has

given weighty reasons for not accepting the claim set

up by the Commission that criteria was fixed on

03.08.2008 as claimed. The observations of the High

Court in paragraphs 41 and 42 are to the following

effect:-

“(41) It is unfortunate that instead of
reversing his unlawful decisions, taken by
side-tracking eight other Members (as it
was a nine-Member body since 21.06.2007),
the Chairman involved those other Members
in a mock-drill and flashed a surprise on
the learned Single Judge by producing the
57

magical ‘single loose sheet’ of their
purported decision dated 03.08.2008 laying
down the ‘criteria for selection’.

(42) We have also perused the decision
dated 03.08.2008 produced in a sealed
envelope. We firmly affirm the findings
returned by the learned Single Judge to
discard the same. We say so for the
reasons that (i) various administrative
decisions whether taken by the Commission
as a multi-Member body (only one such
decision found in the Files) or by the
Chairman contained in the Files produced
before us, are preceded by an ‘Office
Note’ or ‘proposal’ and are invariably
forwarded by the Secretary of the
Commission; (ii) the original record of
decisions taken by the Chairman in the
last week of September, 2008 or in first
week of October, 2008 do not even whisper
about any meeting of the Commission held
on 03.08.2008 or the decision taken
therein; and (iii) the unusual manner in
which the ‘loose sheet’ has been prepared
casts a serious doubt on its genuineness.
The so-called decision dated 03.08.2008
was thus apparently contrived to defeat
the cause of the writ-petitioners and to
mislead the learned Single Judge, who has
rightly held that it was only when he
directed to produce the criteria of
selection that this ‘loose sheet’ “was
prepared and produced in Court”.”

53. We fully concur with the above findings of the

High Court with regard to decision dated 03.08.2008.

It is, thus, proved that decision dated 03.08.2008

was prepared by the Commission subsequent to
58

declaration of the result and only when the learned

Single Judge directed the Commission to produce the

criteria under which the selection for the post of

PTI was undertaken.

54. As noted above the decision of Chairman of the

Commission dated 30.06.2008 not to hold the written

examination was claimed to have been taken due to

“administrative reasons”, but what were

“administrative reasons” have never been disclosed or

brought on record by the Commission. The decision to

change the selection process as notified on

28.06.2006 was a major decision not only affecting

the applicants who had to participate in the

selection on the basis of criteria as notified on

28.12.2006 but had adverse effect on merit selection

as devised for 1983 posts of PTI.

55. As per advertisement dated 20.07.2006, the

Commission had published the criteria for selection

on 28.12.2006 which was implemented also, hence,

there was no occasion to give up the merit selection

in midway. Further, when no reasons are forthcoming

to support the so called ‘administrative reasons’ in
59

the decision dated 30.06.2008 which was so stated by

Chairman for the scrapping the written test, we have

to hold the said decision arbitrary and without

reason. The written test consisting of 100 objective

type of multiple choice questions out of which 60

questions relating to academic knowledge of the

respective subjects including skill and method of

teaching ability and 40 questions relating to general

knowledge, general English and Hindi upto matric

standard was well thought screening test, easy to

conduct and easy to evaluate. The Commission being

recruiting body abdicated its obligation of screening

out the best candidates; The competitive examination,

are means by which equality of opportunity was to be

united with efficiency. By the above method

favouritism was to be excluded and the goal of

securing the best man for the job was to be achieved.

We, thus, conclude that decision dated 30.06.2008 for

not holding the written examination and steps taken

consequent thereto were all arbitrary decisions,

unsustainable in law.

60

56. At this stage we may note one more submission of

Shri Kapil Sibal. Shri Sibal submits that when the

Commission published notice dated 30.06.2008 that no

written test shall be held, the writ petitioners

ought to have challenged the above decision and the

petitioners should have insisted that written

examination may be held. They having not raised any

challenge, at this stage, cannot be permitted to say

that written test ought to have been held.

57. We having held that change in criteria of

selection was never notified by the Commission and

about the change in process of selection candidates

were kept in total dark and for the first time the

criteria applied in selection process was published

along with result dated 10.04.2008, the writ

petitioners cannot be estopped in challenging the

arbitrary criteria so applied. The submission of Shri

Sibal cannot be accepted. The petitioners have never

questioned the criteria which was published on

28.12.2006 i.e. written test of 200 marks and viva

voce of 25 marks, merely because they participated in

the process of selection after the change of
61

criteria, their right to challenge the arbitrary

change cannot be lost. Estopping the petitioners from

challenging the change of criteria will be giving

seal to arbitrary changes affected by Chairman as

noted above.

58. In view of the foregoing discussions, we answer

point Nos.3,4 and 5 in following manner: –

Ans.3:

The decisions dated 30.06.2008, 11.07.2008 and

31.07.2008 were arbitrary decisions without any

reason to change the selection criterion published on

28.12.2006 which have effect of downgrading the merit

in the selection.

Ans.4:

The Commission being a multi-member body, all

decisions pertaining to mode of selection and

criteria was to be taken by the Commission itself,

there being no rules or resolution delegating the

said power to Chairman or any other member.
62

The decision of not holding written examination

dated 30.06.2008, decision to screen on the basis of

eight times of vacancies and percentage of marks

dated 11.07.2008 and decision dated 31.07.2008 to

call all eligible candidates, were all decisions

taken by the Chairman himself, which decisions cannot

be said to be decisions of the Commission.

Ans.5:

The decision dated 03.08.2008 was never taken on

03.08.2008 as claimed and the said resolution was

prepared subsequent to declaration of the result when

the learned Single Judge asked for criteria of the

selection, which was produced in a separate loose

sheet signed by all members.

Point No.6

59. Shri Kapil Sibal, learned senior counsel has

emphatically submitted that in the writ petitions,

there are no allegations of mala fide against the

Chairman or any member of the Commission and further

neither Chairman nor any members being impleaded as
63

party respondent by the writ petitioner, the

petitioners could not have challenged the allocation

of marks in viva voce and there was no basis for any

claim that marks in the viva voce of candidates

having high academic qualification were deliberately

reduced and those, who had poor academic records were

deliberately given marks between 20 to 27 in the viva

voce. Shri Kapil Sibal has placed reliance on

judgment of this Court in Ratnagiri Gas and Power

Private Limited Vs. RDS Projects Limited and Others,

(2013) 1 SCC 524, where this Court has laid down that

the law casts a heavy burden on the person alleging

mala fides. This Court has further laid down that

when the petitioners alleges malice in fact, it is

obligatory for the petitioner to furnish particulars

and implead the persons against whom such malice in

fact is alleged. In paragraphs 25, 26.1, 26.2 and

27, following has been laid down:-

“25. ………………….The law casts a heavy burden
on the person alleging mala fides to prove
the same on the basis of facts that are
either admitted or satisfactorily
established and/or logical inferences
deducible from the same. This is
particularly so when the petitioner
64

alleges malice in fact in which event it
is obligatory for the person making any
such allegation to furnish particulars
that would prove mala fides on the part of
the decision-maker. Vague and general
allegations unsupported by the requisite
particulars do not provide a sound basis
for the court to conduct an inquiry into
their veracity.

XXXXXXXXXXXXXXXX

26.1. In State of Bihar v. P.P. Sharma,
1992 Supp. (1) SCC 222, this Court summed
up the law on the subject in the following
words: (SCC p. 260, paras 50-51)

“50. ‘Mala fides’ means want of
good faith, personal bias,
grudge, oblique or improper
motive or ulterior purpose. The
administrative action must be
said to be done in good faith, if
it is in fact done honestly,
whether it is done negligently or
not. An act done honestly is
deemed to have been done in good
faith. An administrative
authority must, therefore, act in
a bona fide manner and should
never act for an improper motive
or ulterior purposes or contrary
to the requirements of the
statute, or the basis of the
circumstances contemplated by
law, or improperly exercised
discretion to achieve some
ulterior purpose. The
determination of a plea of mala
fide involves two questions,
namely, (i) whether there is a
personal bias or an oblique
motive, and (ii) whether the
65

administrative action is contrary
to the objects, requirements and
conditions of a valid exercise of
administrative power.

51. The action taken must,
therefore, be proved to have been
made mala fide for such
considerations. Mere assertion or
a vague or bald statement is not
sufficient. It must be
demonstrated either by admitted
or proved facts and circumstances
obtainable in a given case. If it
is established that the action
has been taken mala fide for any
such considerations or by fraud
on power or colourable exercise
of power, it cannot be allowed to
stand.”
(emphasis supplied)

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

“56. … It is well settled that
the burden of proving mala fide
is on the person making the
allegations and the burden is
‘very heavy’. (Vide E.P. Royappa
v. State of T.N., (1974) 4 SCC

3) There is every presumption in
favour of the administration
that the power has been
exercised bona fide and in good
faith. It is to be remembered
66

that the allegations of mala
fide are often more easily made
than made out and the very
seriousness of such allegations
demands proof of a high degree
of credibility. As Krishna Iyer,
J. stated in Gulam Mustafa v.

State of Maharashtra, (1976) 1
SCC 800 (SCC p. 802, para 2):

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

27. There is yet another aspect which
cannot be ignored. As and when allegations
of mala fides are made, the persons
against whom the same are levelled need to
be impleaded as parties to the proceedings
to enable them to answer the charge. In
the absence of the person concerned as a
party in his/her individual capacity it
will neither be fair nor proper to record
a finding that malice in fact had vitiated
the action taken by the authority
concerned. It is important to remember
that a judicial pronouncement declaring an
action to be mala fide is a serious
indictment of the person concerned that
can lead to adverse civil consequences
against him.……………………….”

60. There cannot be any dispute to the above

preposition of law reiterated by this Court as above.

We have noticed from the array of the parties in the

writ petition that neither Chairman nor the members

of the Commission were personally impleaded nor there
67

are any specific allegations of mala fide against the

Chairman or the members of the Commission.

61. The present is not a case of malice in fact. The

“malice in fact” and “malice in law” are two well-

known concepts in law. In Ratnagiri Gas and Power

Private Limited (supra), this Court has dealt with

both the concepts, i.e., “malice in fact” and “malice

in law”. Dealing with the conceptual difference

between “malice in fact” and “malice in law”, this

Court laid down following in paragraphs 30, 31 and

32:-

“30. ……………………….The conceptual difference
between the two has been succinctly stated
in the following paragragh by Lord Haldane
in Shearer v. Shields, 1914 AC 808 (HL)
quoted with approval by this Court in ADM,
Jabalpur v. Shivakant Shukla
, (1976) 2 SCC
521: (SCC p. 641, para 317)

“317. … ‘Between “malice in fact”
and “malice in law” there is a
broad distinction which is not
peculiar to any system of
jurisprudence. The person who
inflicts a wrong or an injury
upon any person in contravention
of the law is not allowed to say
that he did so with an innocent
mind. He is taken to know the law
and can only act within the law.

He may, therefore, be guilty of
68

“malice in law”, although, so far
as the state of his mind was
concerned he acted ignorantly,
and in that sense innocently.

“Malice in fact” is a different
thing. It means an actual
malicious intention on the part
of the person who has done the
wrongful act.’” (Shearer case,
1914 AC 808 HL, AC pp. 813-14)

31. Reference may also be made to the
decision of this Court in State of A.P. v.
Goverdhanlal Pitti
, (2003) 4 SCC 739 where
the difference between “malice in fact”
and “malice in law” was summed up in the
following words: (SCC p. 744, paras 12-13)

“12. The legal meaning of
‘malice’ is ‘ill will or spite
towards a party and any indirect
or improper motive in taking an
action’. This is sometimes
described as ‘malice in fact’.

‘Legal malice’ or ‘malice in law’
means ‘something done without
lawful excuse’. In other words,
‘it is an act done wrongfully and
wilfully without reasonable or
probable cause, and not
necessarily an act done from ill
feeling and spite. It is a
deliberate act in disregard of
the rights of others.’ (See Words
and Phrases Legally Defined, 3rd
Edn., London, Butterworths,
1989.)

13. Where malice is attributed to
the State, it can never be a case
of personal ill will or spite on
the part of the State. If at all
it is malice in legal sense, it
69

can be described as an act which
is taken with an oblique or
indirect object.”
(emphasis supplied)

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

“Malice in law

47. This Court has consistently
held that the State is under an
obligation to act fairly without
ill will or malice in fact or in
law. Where malice is attributed
to the State, it can never be a
case of personal ill will or
spite on the part of the State.

‘Legal malice’ or ‘malice in law’
means something done without
lawful excuse. It is a deliberate
act in disregard to the rights of
others. It is an act which is
taken with an oblique or indirect
object. It is an act done
wrongfully and wilfully without
reasonable or probable cause, and
not necessarily an act done from
ill feeling and spite.

48. Mala fide exercise of power
does not imply any moral
turpitude. It means exercise of
statutory power for ‘purposes
foreign to those for which it is
in law intended’. It means
conscious violation of the law to
the prejudice of another, a
depraved inclination on the part
of the authority to disregard the
rights of others, where intent is
manifested by its injurious acts.

70

Passing an order for unauthorised
purpose constitutes malice in
law. (See ADM, Jabalpur v.

Shivakant Shukla, (1976) 2 SCC
521, Union of India v. V.

Ramakrishnan, (2005) 8 SCC 394
and Kalabharati Advertising v.

Hemant Vimalnath Narichania,
(2010) 9 SCC 437.)”

62. The malice in law has been dealt as “something

done without lawful excuse”. The malice in law is

also mala fide exercise of power, exercise of

statutory power for purposes foreign to those for

which it is in law intended. In the present case,

the power to device the mode of selection and fix the

criteria for selection was entrusted on the

Commission to further the object of selection on

merit to fill up post in State in consonance with the

provisions of Articles 14 and 16 of the Constitution

of India. When the alteration of criteria has been

made, which has obviously affected the merit

selection as we have found above, the allegations

which have been made in the writ petition against the

Commission in conducting the selection are

allegations of malice-in-law and not malice-in-fact.
71

63. The High Court had summoned the original records

of the Commission including the marks awarded to the

candidates both on basic qualification as well as

essential qualification as well as viva voce. The

observations, which have been made by the Division

Bench in paragraphs 34 and 36 were inferences drawn

by the High Court based on pattern of the marks

allocated to some of the selected candidates and non-

selected candidates. The observation of the High

Court that “it cannot be a mere co-incidence that 90%

of the meritorious candidates in academics performed

so poorly in viva voce that they could not secure

even 10 marks out of the 30 marks or that the

brilliance got configurated only in the average

candidates possessing bare eligibility” where

inferences drawn from result sheet and re-affirms the

allegations of malice-in-law. The inferences drawn

by the High Court, thus, cannot be said to be

unfounded nor are based on no material or perverse so

as to call for any interference by this Court in

these appeals. We, thus, do not find any substance

in the submission of Shri Sibal that since no
72

specific allegations against Chairman and members

have been made and they being not impleaded as the

parties, the allegations in the writ petition

regarding allocation of marks in viva voce cannot be

looked into by the High Court. Point No.6 is

answered accordingly.

Point No.7

64. The learned Single Judge in the impugned judgment

while allowing the writ petition issued following

directions: –

“These writ petitions are thus allowed.
The purported selection made by the
Haryana Staff Selection Commission in
pursuance to the advertisement No.6/2006,
result whereof was published on 11.4.2010
relating to category No. 23 for the posts
of PTIs, is hereby quashed. A direction
is issued to the Haryana Staff Selection
Commission to hold a fresh selection, in
accordance with law, within a period of
five months from the date of receipt of
certified copy of this order.”

65. Learned counsel appearing for the Commission and

for the State of Haryana submitted that no fresh

selection can be conducted on the post of PTI in view

of the statutory rules namely, Haryana School
73

Education State Cadre Service Rules, 2012, he submits

that in the affidavit, which has been filed by the

Commission on 11.02.2020, in paragraph 4, following

has been stated:-

“4. That so far, the details of the
vacancies existing as on date in the
relevant PTI Cadre, the Haryana Staff
Selection Commission wrote a letter to
Department of School Education to get the
status of existing vacancies in PTI Cadre.
In response to above said letter, the
Department of School Education provided
the following response and the operative
part of said response is reproduced as
follows:-

“In this regard, it is submitted
that the Classical & Vernacular
(C&V) cadre which includes the
appointment of PTI also has been
declared diminishing cadre by the
Government of Haryana by way of
notifying the Haryana School
Education (Group-C) State Cadre
Service Rule, 2012 vide
notification No. GSR-

12/Const./Art.309/2012 dated
11.04.2012. The operative part
of these rules, defined in Rule-
9(5) is relevant to be detailed
herein:-

The present Classical &
Vernacular (C&V) cadre consisting
of the posts of Sanskrit
Teachers, Hindi Teachers, Punjabi
Teachers, Physical Training
Instructors (PTIs), Art & Craft
Teachers (Drawing Teachers),
Tailoring Teachers and Tabla
74

Players and governed by the
Haryana State Education School
Cadre (Group C) Service Rules,
1998 shall be converted to TGT in
relevant subject and no further
requirement shall be made to
these categories when the present
incumbent on the notification of
these rules vacate the post on
his promotion, retirement or any
other purpose.

Since all the vacancies which
were in existence on 11.04.2012
have already been converted in
TGT cadre and further the vacancy
came into existence due to
promotion, retirement or any
other ground of a PTI has also
got converted in TGT cadre,
therefore, there exists no post
of PTI now.

The latest status of vacancies of
PTI is submitted for
consideration and further action
thereon.”

66. Elaborating his submission, learned counsel

submits that the post of PTI is a dying cadre and now

under Rules, 2012, there is post of TGT (Physical

Education), which has higher qualifications, i.e.,

Graduate with Physical Education from a recognised

university. He submits that all posts of PTI have

been converted into TGT, thus, fresh selection, if

any, can be only on the post of TGT (Physical
75

Education). He has also referred to Rule 9(5) of

Rules, 2012, which is to the following effect:-

“9(5). The present Classical & Vernacular
(C&V) Cadre consisting of the posts of
Sanskrit Teachers, Hindi Teachers, Punjabi
Teachers, Physical Training Instructors
(PTIs), Art & Craft Teachers (Drawing
Teachers), Tailoring Teachers and Tabla
Players and governed by the Haryana State
Education School Cadre (Group C) Service
Rules, 1998 shall be converted to TGT in
relevant subject and no further
recruitment shall be made to these
categories when the present incumbent on
the notification of these rules vacate the
post on his promotion, retirement or any
other purpose.”

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

“(h) “TGT” means Trained Graduate Teacher
in the relevant subject appointed after
notification of these rules and shall
include masters appointed before
notification of these rules;“

68. Rule 9(1) deals with recruitment in the services.

Rule 9(1)(j), which is relevant for the present case

as follows:-

“(j) in the case of TGT Physical Education
(PT Master),

(i) 67% by direct recruitment on
contract basis; and

(ii) 33% by Promotion from PTIs; or
76

(iii) by transfer or deputation of an
official already in service of any
State Government, Government of
India; “

69. When the rule contemplates filling up of the post

of TGT (Physical Education) by 33% by promotion from

PTI, PTI continues in the establishment, who can be

promoted as TGT (Physical Education). The submission

cannot be accepted that all PTI in block have been

upgraded as TGT (Physical Education). Had the rule

contemplated such result, there was no question of

filling up TGT (Physical Education) by 33% by

promotion from PTI. This court had occasion to

examine Rules, 2012 in State of Haryana and Another

Vs. Sandeep Singh and Others, (2019) 6 SCC 453. A

writ petition was filed in the High Court by a

teacher occupying the post of Drawing Teacher, he

claimed that Drawing Teacher has been converted into

Trained Graduated Teacher (TGT) under Rule 9(5),

hence, the writ petitioners were also entitled to be

promoted from the day their juniors were promoted as

Trained Graduate Teachers. This Court examined the
77

Scheme of Rules, 2012 elaborately and following was

laid down in paragraphs 19 and 20:-

“19. The entire argument of the appellants
is based upon the expression used that C&V
teachers governed by the 1998 Rules shall
be “converted to TGT in relevant subject”.
The question is whether such C&V teachers
stand upgraded to the post of TGT though,
their promotion channel under the 1998
Rules was to the post of Master which
alone has been treated as TGT as defined
in Rule 2(h) of the 2012 Rules and in view
of express language of Rule 7 which
mandates that the appointment shall be
made to the post of TGT only in accordance
with the qualifications prescribed in the
2012 Rules.

20. The reading of the Rules would show
that C&V teachers are treated to be TGT so
as to avoid anomalous situation where the
C&V teachers after the commencement of the
2012 Rules would not be governed by any
set of Rules. Therefore, the expression
that such C&V teachers stand converted to
TGT is only to facilitate their service
conditions to be governed by the 2012
Rules rather than to upgrade the C&V
teachers as members of TGT cadre. The
feeder and the promotional cadre cannot be
treated on a par by virtue of the
expression used in Rule 9(5) of the 2012
Rules that the C&V teachers shall be
converted to TGT. Such conversion is only
for a limited purpose of the 2012 Rules
being extended to them and that such C&V
teachers do not become member of the
“cadre” eligible for promotion as
Elementary School Headmaster. Rule 9(5) of
the 2012 Rules does not use the word
78

“cadre”. Therefore, such teachers cannot
be treated to be part of TGT cadre. Such
interpretation is further supported by the
fact that C&V Teacher is a dying cadre and
no further recruitment is to be made in
these categories.”

70. This Court in the above judgment has held that

there is no automatic conversion, upgradation of C&V

Teachers into TGT and only to facilitate their

service conditions, they are to be governed by Rules,

2012.

71. We in the present case are concerned with a

selection, which was undertaken in pursuance of

advertisement No.6/2006 for 1983 posts of PTI, result

of which selection was declared on 10.04.2010.

Challenge was made to the said selection in various

writ petitions, which writ petitions were allowed by

learned Single Judge vide judgment dated 11.09.2012.

The selection dated 10.04.2010 was set aside, quashed

and the Commission was directed to hold a fresh

selection within a period of five months. When the

selection was set aside for the post of PTI, the

fresh selection ought to be held as per the

advertisement No.6/2006 and process of recruitment
79

initiated with the advertisement No.6/2006 has to be

brought to its logical end and for the purpose of

selection in pursuance of advertisement No.6/2006,

Rules, 2012 shall not come into way. We may also

notice Rule 20 of Rules, 2012, which is to the

following effect:-

“20. The Haryana State Education School
Cadre (Group-C) Service Rules, 1998,
amended from time to time in so far as
they are applicable to the posts included
in the Service are hereby repealed:
Provided that any order made or action
taken under the rules so repealed shall be
deemed to have been made or taken under
corresponding provisions of these rules.”

72. The selection on the post of PTI vide

advertisement No.6/2006 was under the statutory rules

then existing and selection process, which has been

initiated under erstwhile rules was to be continued

and had not to be scrapped as is clear from the

Scheme of Rules, 2012. In any view of the matter,

when the selection for 1983 posts of PTI was set

aside and the High Court directed to hold a fresh

selection, the selection process was to be continued
80

and completed under the orders of the High Court.

We, thus, reject the submission of the learned

counsel for the Commission and the State that fresh

selection cannot be held as per direction of the

learned Single Judge affirmed by the Division Bench.

We, however, are of the view that selection initiated

vide advertisement No.6 of 2006 has to be proceeded

further from the stage the criterion was arbitrarily

changed by the Chairman. The completion of selection

has to be only from amongst the candidates who had

applied against post of PTI, including those who were

selected.

73. The learned Single Judge after quashing the

select list published on 11.04.2010 directed for

fresh selection on post of PTI. The learned Single

Judge, however, did not issue appropriate

consequential directions for holding the fresh

selection. There was no defect in the advertisement

dated 20.06.2006 and mode of selection as envisaged

by public notice dated 28.12.2006. The arbitrariness

crept thereafter from the stage of scrapping the

written test scheduled to take place on 20.07.2008.
81

The directions ought to have been issued to complete

the process from that stage i.e. the stage of holding

the written test. All the candidates who had applied

for the post of PTI including those selected, ought

to have been permitted to take the written test. We

need to clarify that in the facts of the present case

there was no requirement of fresh advertisement and

inviting fresh applications. In the event fresh

applications are called, large number of applicants

who participated in the selection would have become

over age. All the applicants who had applied in

response to advertisement No.6 of 2006 had right to

participate in selection as per criterion notified on

28.12.2006. The direction of learned Single Judge

needs modification and clarification to the above

effect.

74. We may also notice one more submission of the

learned counsel for the appellant. Learned counsel

for the appellant submits that in pursuance of

selection dated 10.04.2010, the appellants were

appointed and they have now continued for more than

nine years and at this juncture, it is not equitable
82

to throw out them from their posts. In the present

case, result of the selection dated 10.04.2010 was

published on 11.04.2010 and the writ petitions were

filed in May, 2010 itself, i.e., immediately.

Selection was set aside by learned Single Judge on

11.09.2012. The continuance of the appellants is

only by way of interim order. This Court has also

passed an order on 29.11.2013 for maintaining status

quo, which order has been continued till this date.

When the continuance of a person on a post is by

virtue of an interim order, the continuance is always

subject to outcome of the litigation. The

displacement of appellants from their posts is

inevitable consequence of upholding of the judgment

of the High Court. A Constitution Bench of this

Court in C. Channabasavaih Etc. Etc. Vs. State of

Mysore and Others, AIR 1965 SC 1293 has made

following observations in paragraph 9 in such a

situation, which is beneficial to record, is as

follows:-

“9. It is very unfortunate that these
persons should be uprooted after they had
been appointed but if equality and equal
83

protection before the law have any meaning
and if our public institutions are to
inspire that confidence which is expected
of them we would be failing in our duty if
we did not, even at the cost of
considerable inconvenience to Government
and the selected candidates do the right
thing…………………………”

75. In view of the foregoing discussions and

conclusions, we dispose of these appeals with the

following directions:

(i) The Commission shall conclude the entire

selection process initiated by the

advertisement No.6 of 2006 as per criterion

notified on 28.12.2006 i.e. holding objective

type written test of 200 marks and viva voce

of 25 marks. All the applicants who had

submitted applications in response to the

above advertisement including those who were

selected shall be permitted to participate in

the fresh selection as directed.

(ii) The candidates who have been selected and

have worked on the post of PTI shall not be

asked to refund any of the salary and other
84

benefits received by them as against their

working on the posts. No refund shall also be

asked from those candidates who after their

selection worked and retired from service.

(iii) The entire process be completed by the

Commission within a period of five months

from the date Commission starts working after

the present lockdown is over, which was the

time fixed by the learned Single Judge for

completing the process.

(iv) The costs imposed by the Division Bench in

paragraph 54 of the judgment of the High

Court are deleted except the costs imposed on

the Commission.

76. We, thus, while upholding the judgments of the

High Court, subject to the modifications as above,

dispose of these appeals.

77. Before we close, we record our appreciation to

learned counsel for the parties, who have rendered
85

valuable assistance to the Court in deciding these

appeals.

………………….J.

( ASHOK BHUSHAN )

………………….J.

New Delhi,                        ( NAVIN SINHA )
April 08, 2020.



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