Amit Kumar Das And Ors vs State Of Tripura And Ors

These petitions arise in common background. Both the petitioners have challenged the selection process for the post of Fireman, Group-C post.

Facts, in brief, may be noted.

Sri Amit Kumar Das, petitioner of W.P. (C) No.961 of 2018 belongs to a Scheduled Castes category. The State Government had issued an advertisement on 21.05.2015 for selection to the post of Fireman. Under this advertisement, the Government had notified 68 vacancies for Scheduled Caste candidates and 179 vacancies for the General category candidates. The minimum educational qualifications required were Madhyamik or equivalent examination passed. The petitioner was possessing necessary educational qualifications. He, therefore, applied for the post in question. The selection process consisted of an endurance test followed by written examination of 30 marks and oral interview of 20 marks. The petitioner cleared the endurance test and appeared in the written examination. He was also orally interviewed. The respondents did not offer an appointment to the petitioner. He thereupon made an application dated 20.03.2018 under the Right to Information Act seeking necessary information about the breakup of marks in written and oral examinations awarded to him as well as to the selected candidates. The respondents provided him the marks secured by him during such examinations but refused to provide the breakup of marks awarded to the selected candidates. The result showed that the petitioner had secured 25 out of 30 marks in the written examination but was awarded only 2 out of 20 marks in the oral interviews. The petitioner, therefore, filed the petition in which he has challenged his non-selection and prayed that direction be issued to the respondents to consider the petitioner for the post of Fireman.

The respondents have filed the affidavit-in-reply in which they were pointed out that the last selected SC candidate had secured an aggregate of 29 marks against the total of 27 marks awarded to the petitioner. He was thus not meritorious enough to secure appointment. Along with the affidavit-in-reply, the respondents have produced a list of selected candidates belonging to SC category along with the breakup of marks in written and oral interviews awarded to them. On the basis of such data, the respondents contended that petition is meritless.

Md. Samim Miah, petitioner of W.P. (C) No.569 of 2019 belongs to un-reserved category. He had also applied for the post of Fireman in response to the said advertisement dated 21.05.2015 but in UR category. He cleared the endurance test, appeared in written and oral examinations. He was awarded 25 marks in the written test and 4.25 marks in the oral interviews which information is gathered through application filed under RTI Act. He was thus awarded a total of 29.25 marks. He was not offered an appointment. He, therefore, filed this petition. His prayer is for taking fresh interviews. He has contended that his oral interview lasted may be one and half to two minutes during which no significant relevant questions were asked to him.

The respondents have filed an affidavit in which allegations made in the petition are denied. It is contended that there were no irregularities in conducting the oral interviews. It is pointed out that the petitioner did not secure sufficient marks to merit appointment. It is contended that the petitioner having participated in the selection process now cannot challenge the same.

On the basis of such materials on record, learned counsel for the petitioners submitted that the respondents have committed gross illegalities in conducting the oral interviews though the petitioners had scored heavily in the written examination. They were deliberately given less marks in the oral interviews to keep them out of selection. They submitted that very high proportion of marks were allotted for oral interviews which was opposed to the principles laid down by the Supreme Court in case of Ajay Hasia and others versus Khalid Mujib Sehravardi and others, reported in (1981) 1 SCC 722 and in case of Ashok Kumar Yadav and others versus State of Haryana and others, reported in (1985) 4 SCC 417.

They also submitted that merely because the petitioners participated in the oral interviews, they would not be precluded from challenging the illegalities committed during the course of such interviews. In this context, they relied on the decision of Supreme Court in case of Ashok Kumar and another versus State of Bihar and others, reported in (2017) 4 SCC 357.

On the other hand, learned Additional Government Advocate, Mr. D. Sharma opposed the petitions contending that there was no illegality in the selection process. No allegations of mala fides have been made against the members of the interviews panels. The candidates who have been selected and appointed and who would be affected by the outcome of this petition have not been joined as respondents. Petitioners, who had participated in the entire selection process, cannot challenge the validity thereof. Counsel lastly contended that both the petitioners need not secure sufficient marks for being included in the select list in the respective categories.

At the outset, I may clear the position of not part of the selection process the petitioners can challenge and not part they would be stopped from challenging, having participated in the selection process including the oral interviews. By series of decisions of the Supreme Court is by now well settled that the person, who willingly participates in a selection process, cannot challenge the validity of the selection process. This principle is founded on the premise that one, who submits towards the selection process, voluntarily participates without any protest surely would not have challenged the validity of such a selection process if he or she was selected. Having taken such a chance and finding out that she is not selected, she cannot turn around and question the legality of the selection process itself. The petitioners, therefore, cannot question the allocation of marks for written examination and oral interviews, they themselves having taken part in the selection process without any protest. However, it does not mean that if any illegality is committed in the selection process and in particular, in the oral interviews, the petitioners are precluded from pointing out such illegality and challenging the same. In other words, the contention of the petitioners that disproportionately high marks were allocated for oral interviews, cannot be a ground for challenge in these petitions. Nevertheless, their grievance that there were irregularities committed in the conduct of the oral interviews and that by giving artificially less marks in such oral interviews, they were illegally kept out of the select lists, are the contentions they can raise and which must be examined.

In this context, the materials on record would show that in W.P. (C) No.961 of 2018, the petitioner was awarded a total of 27 marks. This included 25 marks for written examination and 2 marks for oral interviews. The last selected SC candidate was awarded a total of 29 marks. The petitioner, on the basis of his performance in the selection was not placed in the select list. In the petition, the petitioner has pointed out that even in the written examination, the petitioner was not awarded 1 mark for a correct answer he had given. The question was which date is the Republic Day of India. In the affidavit-in-reply, the respondents have virtually conceded that not awarding 1 mark for the answer given by the petitioner to this question was an error. We would, therefore, have to proceed on the basis that the petitioner had secured a total of 26 marks in the written examination and his grand total would thus come to 28 marks. The petitioner still falls short of being selected.

Awarding 2 marks in the oral interview to a candidate, who had secured heavily in the written examination, would raise some doubt or at least some curiosity. The question would spring to one's mind, was any attempt made to deliberately keep the petitioner out of contention by awarding less marks in the oral interview. However, mere suspicion would not be sufficient. There is nothing in the record to suggest that the members of the interview panel had any personal interest in the selection process and particular, in keeping the petitioner out of contention. No such allegations have been made, much less established. In absence of allegations of personal mala fides and in absence of any material whatsoever to establish any such ground, the scope of judicial review in connection with a selection process carried out by the expert committee would necessarily be extremely narrow. Coupled with this, one important feature which comes out from the select list produced by the respondents along with the affidavit-in-reply is that not only the petitioner but a large number of candidates, who had appeared in the selection test have been awarded less marks in the oral interviews. For example, candidates at Sl. Nos.73 to 83, 87, 103, 108 to 110, 112, 113, 115, 119 have all been awarded 2 marks in the oral interviews. All of these candidates, like the petitioner, had secured heavily in the written examination in the range of 23 to 25 marks. Thus, scoring heavily in the written examination but securing less marks in the oral interviews is not peculiar to the petitioner. The last selected SC candidate was placed at Sl. No.69. The petitioner, according to his performance in the examination, has been placed at Sl. No.110. In absence of any demonstrable illegality or irregularity in conduct of the oral interview, the prayers made in the petition cannot be granted. This is quite apart from possible delay in filing the petition as also the question of not joining the selected candidates, who would be affected if the petitioner were to succeed.

Coming to the case of the petitioner of W.P. (C) No.569 of 2019, the facts are even more glaring. This petitioner, we may recall, had secured 25 marks in the written examination and was awarded 4.25 marks in the oral interview. His grand total thus was 29.25 marks. Last selected UR category candidate was awarded 38 marks. Thus, there is a gap of merely 9 marks between the petitioner and the last selected un-reserved category candidate. The petitioner has produced the list of all un-reserved category candidates and the marks allotted to them. The competition was so fierce that on an identical grand total several candidates were placed. The candidates were given marks in fractions in the oral interviews. The number of candidates, who had secured 38 or more marks but less than 39 marks (i.e. 38, 38.25 or 38.75 marks) was 93. Thus, between 38 and 39 marks there were as many as 93 candidates. The petitioner, who had secured 29.25 marks, was way below in the merit list. Besides, there is no material to suggest that his performance in the oral interviews warranted awarding more marks than 4.25. His allegation that the interviews lasted for a very brief while is denied by the respondents.

In the result, both the petitions fail and are dismissed. Pending application, if any, stands disposed of.