Bholanath Chakraborty and Others vs Steel Authority of India Limited and Others

Satyabrata Sinha, J.—These three writ applications being inter-related were taken up for hearing together and are disposed of by a common judgement. The admitted facts of the matter are as follows :

Durgapur Steel Plant of Steel Authority of India Limited issued a press advertisement on 6th May, 1994 for recruitment to the post of Technician (Rigger) in L.3, Grade for different maintenance sections of Works Department. 847 aspirants of the said posts applied therefor upto 23rd May, 1994. The screening committee upon holding examinations and considering the question as to whether the applicants fulfilled the eligibility criteria recommended the case of 494 candidates who were asked to appear at the interview and practical test. 479 out of 494 eligible candidates appeared for practical test and interview and only 130 candidates became selected. Out of the selected candidates 105 were from the General Category and 22 candidates from the category of the Scheduled Castes and 3 from the category of Scheduled Tribes. They were medically examined. However, while the processes for their appointments were going on an information was received by the management of Durgapur Steel Plant to the effect that many of the selected candidates submitted fake/forged experience certificates. With a view to verify the correctness or otherwise of the said allegations, a committee was formed on 3.3.95.

Ajay Kumar Karmakar and 35 Ors. who are also petitioners of CO. No. 14549(W) of 1995 filed a writ application which was registered as C.O. No. 8601(W)/95. By an order dated 7.6.95 the said writ application was disposed of inter alia by directing issuance of offers of appointment to the successful candidates upon verification of their testimonials with a rider that in any event the same are found to be fake, they would not be allowed to join.

It was further directed that the respondent shall forthwith make offer of appointment to such candidates whose experience certificates have been to be genuine and who fulfilled other criterias for appointment.

Certificates of 45 candidates were found to be genuine. Out of them 37 were granted appointment. It is accepted by all concerned that no appeal had been preferred therefrom, and thus appointment of those candidates have been final. In the meantime Bholanath Chakraborty & Ors. filed a writ application being CO. No. 12333(W)/95 on 20th July, 1995 claiming inter alia, the following reliefs :

"(a) A writ in the nature of Mandamus asking the Respondents as to why the names of the candidates from the impugned panel of 130 for the post of Technicians(Rigger)L-3 who are found ingenuine should not be eliminated and/or cancelled;

(b) A writ in the nature of Mandamus commanding the Respondents to consider the petitioners candidature for appointment to the post of Technician(Rigger) L-3 grade who are now coming in the zone of consideration of elimination of ingenuine candidates from the select list of 130 candidates."

In the said writ application, following interim order was passed :

"The respondents may give employment to the petitioners who had filed writ applications in this court being In Re : Ajoy Kumar Kar and 35 others in terms of the order passed therein. So far as appointments of other candidates, if any the same shall abide by the result of the writ application. In the offer letters issued to such other candidates, the respondents shall categorically state that such appointments, shall abide by the result of this writ application, while granting such appointment, condition imposed in the earlier case, being in Re : Ajoy Kumar Kar & Ors., shall also apply till further orders. The petitioners may make other employees and/or some of them in their representative capacity parties in the writ application so that the interest of the persons who may be effected by this interim order, may not be jeopardised."

Ajoy Kumar Karmakar and others also filed a second writ application being C.O. No. 14549(W) of 1995 on 23.8.95 questioning the decision of the Durgapur Steel Plant to seek assistance of the District Magistrate in the matter of finding out of the genuineness of the testimonials. An application was filed by Bholanath Chakraborty for impleading 5 persons as parties. By an order dated 23.8.95 this court directed :

"Both the matter will be heard as Listed Motion'' 3 weeks hence. A/O, A/R in the meantime. Application for addition of parties is allowed. Investigation shall be carried out by the company so far genuineness of the certificates are concerned. However, the D.M., Burdwan shall not arrest any of the petitioners without leave of the Hon''ble Court, D.M., Burdwan is directed also to file a report."

An application for addition of parties was allowed subject to any objection that may be taken at the time of final hearing. As against the said order an appeal was preferred in September, 1995 but a prayer for interim order was refused. It is accepted now that as in the mean time, the certificates issued by 45 candidates were found to be genuine. Offers of appointment were given to them and they joined their posts on 30.8.95.

In the mean time on 20.12.1995 other empanelled candidates namely, Kajal Mukherjee and Ors. filed the third writ application being CO. No, 22245(W) of 1995. No interim order was passed in the said writ application where against an appeal was preferred which was marked as F.M.A.T. No. 3890 of 1995. The aforementioned two appeals were taken up for hearing together and by a judgement and order dated 15.1.1996 the division bench disposed of the said appeals directing the Durgapur Steel Plant to issue provisional appointment letters to the candidates who had already been empanelled within a period of 2 weeks from the date of order subject to their medical fitness. However, it was directed that the said company shall investigate with regard to the genuineness of the certificates submitted by them but not by appointing any independent investigating agency. It was also directed that such investigation should be completed within a period of two'' months and all appointments would be purely on provisional basis without prejudice to the rights and subject to the order that may be passed in the writ application. Pursuant to the, said order provisional letters of appointment were issued in favour of 76 selected candidates on 24.1.1996 and out of them 74 candidates joined.

Bholanath Chakraborty and Others, however, filed an application for special leave to appeal before the Supreme Court of India and by an order dated 20th July, 1997 the matter was directed to be considered afresh but in the mean time the parties were directed to maintain status quo.

After 3.1.96, however, the employers of 4 selected candidates out of the 5 selected candidates of the first lot approached the District Magistrate, Burdwan and he confirmed the validity of the experience certificates issued by them. Pursuant thereto by a letter dated 15.2.96 the District Magistrate informed the Durgapur Steel Plant that the cases of 4 candidates may be considered. Whereafter provisional letters of appointment were also issued to the said four candidates on 26.3.96.

The factual position with regard to the said appointment is as follows:-

Number of selected candidates appointed in the first lot

37

Number of selected candidates appointed in the 2nd lot

74

Number of selected candidates appointed in the 3rd lot

4

Total

115

Balance (Total 130-115)

15

(a) Number of candidates found medically unfit

8

(b) Number of candidates died

1

(c) Number of candidates not joining

2

(d) Number of candidates whose medical

report are still pending.

1

(e) Number of candidates whose provisional appointment

letters were made ready but could not be issued

in view of the order passed by the Hon''ble Supreme

Court on 9.4.1996 which was received by DSP on

6.5.1996.

3

Total

15

So far as the appointment of 37 candidates are concerned as indicated hereinbefore, their appointment must be held to be final and in none of the writ application, validity of said appointment can be questioned. On the self-same reason the writ petition filed by the Ajoy Kumar Karmakar & Ors. must be allowed.

During pendency of these writ petitions, the report of the committee for verification of experience certificates submitted by candidates for recruitment to the post of technician dated 26.2.96 was filed before this court.

Sengupta, J., allowed the parties to file affidavits with regard to the contents of the report upon exchanging the same by order dated 13.1.98. Pursuant to the said order although Ajoy Kumar Karmakar and Ors. filed a supplementary affidavit but Bholanath Chakraborty and others did not.

Despite the same, Mr. Saha appearing on behalf of the petitioners in CO. No. 12333(W) of 1995 (Bholanath Chakraborty and Ors.) sought to point out alleged discrepancies in the said report of the committee.

Mr. Gupta, the learned Counsel appearing on behalf of the Durgapur Steel Plant, on the other hand, submitted that had any supplementary affidavit been filed and discrepancies, if any, pointed out, his clients could have shown that the allegations, if any, are incorrect.

The requisite qualifications for the post of Technician (Rigger) was School Final or Equivalent Examination with 5 years'' experience or pass of Standard-VIII Examination from a reputed school with an experience of 8 years.

Dr. Pal, the learned Counsel appearing on behalf of the petitioners, inter alia, submitted that Bholanath Chakraborty and Ors. have no locus standi to file a writ application as they had taken a chance of appearance before the selection committee. Reliance in this connection has been placed on Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , 1983(1) SLR 109, 1997(1) SLR 474, 1998(1) SLR 143. 1996(1) SLR 612 & The Chancellor and Another Vs. Dr Bijayananda Kar and Others, .

It was further submitted that Bholanath Chakraborty suppressed the material fact about his age as he disclosed his date of birth as 5.1.1965 on the basis of a transfer certificate of Benechity Night School dated 3.1.1980 although it subsequently transpired that he was a student of B-Zone Boys'' M. P. School, Durgapur and on verification of the records of the said school it transpired that his date of birth was 1.1.1960 and, thus, was not eligible for appointment. It was further submitted that as the unselected candidates were not found to be qualified in the practical test they were not entitled to get appointment in the post of Technician. The learned Counsel in this connection has also drawn this court''s attention to paragraph 14 of the affidavit-in-opposition to the supplementary affidavit filed by Durgapur Steel Plant in CO. No. 12333(W)/95 and paragraph 10 of the affidavit-in-opposition to the supplementary affidavit affirmed by Kajal Mukherjee in the said case. The learned Counsel submits that keeping in view the fact that Bholanath Chakraborty and others have approached this court with unclean hands, they are not entitled to any relief whatsoever. The learned Counsel submits that in certain cases the previous employees of the candidates who were asked to see the committee, did not turn up but their experience certificates were found to be genuine on the basis of the other materials on records.

According to the learned Counsel, experience of the following candidates were confirmed by the companies which had not earlier done ''by respondents :

Names of the candidates whose experience have been confirmed

Companies which have confirmed

Companies which have not responded

Kumaresh Roy (Sl. No. 9)

Commot Enterprise (Sl. No. 40)

Dhinjoy Cont. (Sl. No. 8)

Bireswar Chakraborty (Sl. No. 15)

QUICL-o-FAST (Sl. No. 24)

Spark Engg. (Sl. No. 44)

Provat Sadhukhan (Sl. No. 20)

Perfect Diesel (Sl. No. 43)

Dredge & Drive (Sl. No. 46)

Biren Ghosh (Sl. No. 38)

Saha & Saha Constn. (Sl. No. 11)

Roy Constn. (Sl. No. 55) Bigneswar Constn. (Sl. No. 56)

Sk. Alamgir (Sl. No. 39)

Saha Engg. (Sl. No. 42)

Universal Corpn. (Sl. No. 40)

Anutosh Sarkar -- Para 14 of A/O to the supplementary affidavit filed by the D.S.P., as stated in the foregoing paragraph.

The learned Counsel submits that the erstwhile employers of the candidates did not respond to the call of the selection committee for confirmation of the service on their part but despite the same their experience. certificates should be accepted as genuine for the following reasons :

"(a) Most of the petitioners worked as Makeshift employees in certain companies. Some of the said companies may have inflicted, the process of winding up or may have closed down;

(b) Most of the petitioners were engaged in construction firms and according to petitioners such firms may have shifted to other states of our country;

(c) Some of the petitioners have been a victim of retrenchment policy of the organisation for which the petitioners worked as such companies may have closed down or shifted to other states and so those companies did not feel the necessity to issue the reply to further verification letters;

(d) Some of the petitioners worked in certain organisations which had been taken over by other companies or merger or amalgamated with other company so whether the change of administration it is very difficult for the new members of the administration to give reply to the further verification as the records of the erstwhile employees may have been lost or been destroyed.

It has been submitted that some of the candidates had also filed affidavits and pursuant to the offer of appointment made in their favour they are also working. According to the learned Counsel in the aforementioned situation, the right of the candidates cannot be taken away in view of the following :

(1) The right of the appointed candidates which included livelihood cannot be blown to smithereens without any conclusive proof;

(2) Such right cannot be mutilated on the basis of presumption and assumption;

(3) Suspicion cannot take place of evidence;

(4) The performance certificates and sworn-in-affidavits are self-explanatory of the fact that the remaining 36 selected candidates are quite deft in handling the job of Technician Rigger, which requires technical acumen.

Mr. Saha, the Ld. Counsel appearing on behalf of the petitioner Bholanath Chakraborty & Ors. (unsuccessful candidates) on the other hand, inter alia, submitted that the petitioners had locus standi to question the genuineness of appointment as a large scale of irregularities have been committed in the selection process. The Ld. Counsel in this connection has relied upon the decision reported in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, and University of Cochin, Rep., by its Registrar, University of Cochin Vs. N.S. Kanoonjamma and others, . According to the Ld. Counsel even the unsuccessful candidates can file a writ application inasmuch as the Durgapur Steel Plant which is a State within the meaning of Article 12 of the Constitution of India cannot be allowed to make illegal appointments as appointees had not fulfilled the essential qualification for appointment and thus, they were not eligible to be considered therefor.

The learned Counsel submits that the petitioners although are unsuccessful candidates, keeping in view the magnitude of the illegalities committed by the authorities of Durgapur Steel Project, they have locus standi to maintain a writ application. Reliance in this connection has been placed on Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , Bharat Prasad Gupta Vs. State of West Bengal, and University of Cochin, Rep., by its Registrar, University of Cochin Vs. N.S. Kanoonjamma and others, . According to the learned Counsel after the decision of the Supreme Court in Fertilizer Corporation Kamagar Union Sindri v. Union of India reported in AIR 1981 SC 344, the doctrine of locus to file writ application has been liberalised, it was further submitted that the expression ''aggrieved person'' cannot have any fixed connotation and a right to question an appointment, must vary from situation to* situation. Reliance in this connection has been placed o Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, , Himalaya Tiles and Marble (P) Ltd. Vs. Francis Victor Coutinho (dead) by LR''s., and certain passages from De Smith''s Judicial Review of Administrative Action, 4th Edn.

The Ld. Counsel further contends that keeping in view the fact that experience constitutes a major role for selection of candidates as 50% marks were allotted to the experience, it was obligatory on the part of the respondents to thoroughly scrutinise the certificate of experience filed by the petitioners of the other two writ applications. It is submitted that where the entire selection process was found to be tainted with illegalities, the High Court has the jurisdiction to quash such selection. Reliance in this connection has been placed on Ajoy Hasia v. Halid Mujib Sehravandi reported in AIR 1981 SC 722 and Ashok Kumar Yadav and Others Vs. State of Haryana and Others, which have been followed in Satpal v. State of Haryana reported in 1995 Suppl.(1) SCC 206.

The Ld. Counsel contends that reliance placed by Dr. Pal in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, has been distinguished in Raj Kumar and Others Vs. Shakti Raj and Others, wherein it has been held that principles of estoppel by conduct or acquiescence cannot have any application as in that case government have committed clear illegality in the procedure and also in the method of selection in exercise of its power as also failure to conduct the selection process in accordance with the rules. Reliance in this connection has also been placed in Bihar Public Service Commission and another Vs. State of Bihar and others, . It has been submitted that the respondents being a state, its action must be informed by reason. Reliance in this connection has been placed on Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, and Biswa Ranjan Sahoo and others Vs. Sushanta Kumar Dinda and Others, .

The Ld. Counsel has submitted that once an illegality has been committed, the same cannot be directed to be perpetuated. Reliance in this connection has been placed on Harpal Kaur Chahah (Smt) v. Director, Punjab Instructions . The Ld. Counsel contends that all the eligible persons have a right to be considered for appointment which means effective consideration. In support of the aforementioned proposition the Ld. Counsel has relied upon Ashoke Kumar v. Chairman Banking Services Recruitment Board & Ors. Reported in 1996 SCC (L & S) 298.

As noticed hereinbefore, although the Ld. Counsel for the parties had raised various contentions and cited a large number of decisions but there cannot be any doubt whatsoever that in a matter of this nature, the court has a limited role to play. The petitioners Bholanath Chakraborty & Ors., inter alia, questioned the selection of the petitioners of the other two writ applications, inter alia, on the ground that the performance of those selected candidates during practical test was not upto the mark, whereas the performances of the petitioners are better. They further sought to point out a Newspaper report that an irregularity has been committed in the selection process which is contained in Annexure D'' to the writ application. The further contention of the petitioner is as regard genuineness of the certificates of the selected candidates.

Before adverting to the rival contention the following facts which are admitted may be noticed.

In terms of an advertisement dated 21.4.94 applications were invited fro recruitment of technician (Rigger) under Durgapur Steel Project wherefor requisite qualification was School Final or equivalent examination with 5 years'' experience or pass standard Class-VIII Examination with experience of 8 years.

They were to be well equipped with technical process viz. precision load i.e. bearing an engineering Machine Handling, crane and load handling, load lifting, arranging for scaffold signaling to the crane operators, shifting of crane, slinging loading and splicing making of different hitches and knots in slings, repair jobs of chain pulley block, lifting tools and tackles.

491 candidates out of 1061 were called for interview and they had been asked to produce the following testimonials in original :

"(a) Age Certificate, academic and technical qualification.

(b) Any other relevant certificates as evidence of higher qualification, extra curricular activities etc.

(c) Experience certificate from present and past employer;

(d) No objection certificate from present employer; if working in Govt./Semi Govt./Public Sector Undertaking;

(e) SC/ST issued by prescribed authority in case the petitioners belong to SC and ST Community.

(f) Three copies of passport size photographs signed by the petitioners and duly attested by any Gazetted Officer;

g) Attested xerox copies of documents mentioned at SI. No. (a), (b), (c) and (d) above.''''

All the 491 candidates appeared for such job test cum interview at the rate of 50 candidates per day. Such tests were held in Durgapur Steel Plant Training Institute and were conducted by a Board headed by Technical Expert like Mr. V. R. Sundaram, Assistant General Manager, Maintenance, Mr. Kamal Biswas, Bloom and Billets (Milling), Sri S. S. Atta, Assistant General Manager, Coke and Cokeover Chemicals.

The nature of the job, required such job tests. Such tests were evidently conducted by experts. Those who had become unsuccessful, thus, were not found eligible for appointment and only 130 candidates were called for medical test. The relevant rules of the recruitment policy are :

"15.0 -- Final Selection of candidates.

14.1. The Selection Committee will assess the comparative merits of each candidate in terms of his/her qualifications experience, if any, and on the basis of performance in the selection test(s) as per criteria laid down and come to a conclusion as to whether or not the candidate would measure up to the requirements of the job he/she expected to perform. However, wherever marks are assigned, committee members will be required to give marks on the basis of criteria laid down depending upon the relative performance of each candidate in the test/interview and keeping in view his/her suitability for the job in question.

16.0 -- Medical Examination.

16.1 -- All appointments in the Company. will be subject to the selected candidates being found medically fit by the Company''s medical officer/board for the post(s) for which they have been selected. Where there is no company hospital, medical examination will be conducted by an approved Government hospital/medical board."

Thus, it is evident from Rules 15.1 and 17.1 about the only selected candidates are called for medical examination. The provision for selection committee is contained in paragraph 14 of the recruitment policy. 14.2 reads thus :

"14.2 -- Suitable executives of the Company belonging to different disciplines/work areas who may be associated in the Selection Committee(s) will be identified and a panel drawn up with the approval of the competent authority. The executives so identified will be imparted suitable training for uniform, objective and effective evaluation of candidates. The panel will, however, he subject to periodic review and updation depending on requirements. The competent authority while constituting selection committees will, as far as possible, co-opt executives so empanelled as member."

The provision of the recruitment policy aforementioned and the way the tests have been conducted and the experience certificates have been verified, there cannot be any doubt wheresoever that only those persons who are found fit to carry out the job and whose experience certificates were found to be valid were called for medical examination. Their capacity to perform the job in the post of technician (rigger) is, therefore, beyond any dispute. Similarly the unsuccessful candidates have not been found eligible for performing their duties are also not in doubt or dispute.

The ''entire exercise of the verification of the testimonials arose out of a letter of complaint. The Durgapur Steel Project did not have any suspicion in their mind as regard the genuineness of such certificates. If in view of certain allegations a further enquiry was required to be made as also under the orders of this court, the same was done ex majori cautela. The contention raised by the parties in this application must be considered in the aforementioned backdrop.

Before proceeding to deal with the matter it may be noticed that a division bench of this court while passing an order dated 15.1.96 directed the Durgapur Steel Project -(SAIL) itself to make an investigation with regard to the genuineness of the certificate submitted by the candidates. The court further directed that those selected may provisionally be appointed and the investigation be completed within a period of two months.

Pursuant to the aforementioned direction of the division bench a report has been filed before this court. As indicated hereinbefore despite opportunities granted to the petitioners of C. O. No. 12333(W)/95 (Bholanath Nath Chakraborty & 58 others) no objection thereto has been filed; whereas a supplementary affidavit has been filed by petitioners Kajal Mukherjee & Ors.

The job of selection of the candidates was within the domain of the selection committee. It is the employer who is the best person to know as to who should be appointed and who should not be. This court can neither substitute itself in place of the selection committee nor can sit in appeal over its decision. Thus, the question as to whether the performances of the unsuccessful candidates were better that the selected candidates or not cannot fall for the decision of this court. As indicated hereinbefore so far as Ajoy Kumar Karmakar and 35 others who had filed CO. No. 8601(W)/95, the direction issued by this court is final as neither any appeal had been taken out by either party against the judgement and order passed on 7.6.95.

So far Newspaper reports are concerned the same being second hand secondary evidence, can be said to have no relevance while adjudicating in such matters. The petitioners Bholanath Chakraborty & Ors. have, inter alia prayed for the following reliefs :

"a) A writ in the nature of Mandamus asking the Respondents as to why the names of the candidates from the impugned panel of 130 for the post Technicians (Rigger)L-3 who are found ingenuine should not be eliminated and/or cancelled.

b) A writ in the nature of Mandamus commanding the Respondents to consider the petitioners candidature for appointment to the post of Technician (Rigger)L-3 grade who are now coming in the zone of consideration on elimination of ingenuine candidates from the select list of 130 candidates."

This court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot enter into a disputed question of fact. The question as to whether the certificates filed by the candidates are genuine or not is essentially a question of facts. A presumption may be raised that a State within the meaning of Article 12 of the Constitution of India while appointing candidates has satisfied itself that the unsuccessful candidates have fulfilled the criterias laid down for their appointment. The onus to rebut such presumption is on the person who questions such decision.

As noticed hereinbefore, the Durgapur Steel Project on its own scrutinised the genuiness of such certificates and subsequently under the order dated 15.1.96 passed by a division bench, a committee has been constituted to ascertain the genuineness of the certificates of the candidates. In that view of the matter Prayer-A cannot be allowed as the same would give rise to investigation into a disputed question of fact. Furthermore, a court shall not direct any roving enquiry to be made. When a report has been filed before this court by a committee in terms of the order of the division bench dated 15.1.96 and as despite opportunities the writ petitioners did not point out to the court as to how the said report is incorrect, this court will have to proceed on the basis that the satisfaction arrived at by the committee as regard the genuineness of the experience certificate filed by the successful candidates is correct. Had a supplementary affidavit been filed by the writ petitioners, the successful candidates as also the Durgapur Steel Project could have shown that the contentions raised by the unsuccessful candidates are not correct. Unless an opportunity is granted to the employer, it would not be proper on the part of the court to consider the submissions of Mr. Saha with regard to the correctness thereof, as the same would be violative of the principles of natural justice. See Benny T. D. v. Registrar Co-operative Societies, 1998 SC 2012.

So far as Prayer-B is concerned the same cannot also be allowed as this court in exercise of its jurisdiction under Article 226 of the Constitution of India as they have not been found to be qualified therefor. Being not qualified this court cannot direct their appointment in the anticipated vacuum of selected candidates.

In State of Mysore & Anr. v. K. N. Chandrasekhar, reported in AIR 1965 SC 532, the Apex Court has held :

"The Commission is undoubtedly a body constituted pursuant to the provisions of the Constitution and has to exercise powers and perform function''s entrusted to it by the Rules framed under Article 309. But the order which the High Court made was not for compelling performance of its duty imposed upon the Commission by statute or Common law. If the High Court came to the conclusion that the proceeding of the Commission was vitiated on account of some irregularity or illegality, it could declare the proceeding void."

In Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , it has been held :

"Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to re-assess the relative merit of the concerned candidates who had been, assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. it is for the Interview Committee which amongst others consisted of a sitting High ''Court Judge to judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court, of appeal over the assessment made by such an expert committee."

In Durga Devi and another Vs. State of H.P. and others, , the Apex Court followed Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, holding :

"The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the Selection Committee."

In Kuldip Chand Vs. State of H.P. and others, , the Apex Court again followed Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others,

The process of selection is an administrative one. The court will not normally interfere with the same. See National Institute of Mental Health & Newco Sciences v. Dr. K. Kalyana Raman & Ors. reported in AIR 1992 SC 1006.

In the instant case the Apex Court in its order dated 28.7.97 which is contained in Annexure ''B'' to the supplementary affidavit directed the High Court to decide the writ petition on the basis of the report and other materials. As correctness of the report is not in dispute and if the exercise as regard thereto is taken recourse to, the court will have to deal with voluminous records, which would neither be convenient nor feasible. It may be noticed that time granted for verification of the experience certificates by the order of the division bench dated 15.1.96 was limited to two months only. It is only in that situation the previous employers of the candidates had been asked to see the members of the committee. Some of them had come, some of them had not. Some of the employers, however, later on certified that the certificates issued by them are correct. Some of those employers who did not turn up before the interview committee had also subsequently written to the committee that the certificates granted by them are genuine. Only in cases of those certificates which were not verified to be authentic, the committee went through other materials on records so as to arrive at a conclusion as to whether the same are genuine or not. Such verification has been made on the basis of the confirmation letters earlier issued to them and is confined only to Serial Nos. 12, 30, 09, 23, 15, 14, 38, 35 and 31 as contained in Annexure-4 to the report. Out of 36 certificates, 3 certificates even could not be verified by taking recourse to that process. Confirmation in respect of 11 were received by the respondents subsequent to 14.3.1996. One candidate as noticed hereinbefore was sent for medical reexamination and subsequently found to be medically fit and his candidature was, thus, also brought within the scope of verification. His case had also been considered after confirmation received from his previous employers as regard the genuineness of the certificate.

There cannot be any doubt whatsoever that selection process at the hand of the State must be fair. It is, however, beyond any cavil of doubt that such selection process must conform to the recruitment rules as also the provision of Articles 14 and 16 of the Constitution of India, But the question which would arise for consideration in this case is as to whether unsuccessful candidates have been able to make out such a case. The answer to that question must be rendered in the negative.

In Satpal and Ors. v. State of Haryana and Ors., 1995 Suppl. (1) SCC 206 , 85% of the total marks were allotted to interview alone and 400-600 candidates were selected by interview in one day. It is in that situation the writ application of the unsuccessful candidates was entertained. In that case it was found as of fact that selection process was reduced to farce. The Supreme Court distinguished its earlier decision in Sardara Singh and others, etc. Vs. State of Punjab and others, , Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, and Ashok Kumar Yadav and Others Vs. State of Haryana and Others, and laid down the law in the fact of the case stating :

"In the instant case, apart from the fact that the percentage of marks allocated for interview was as high as 85, the fact that as many as 400 to 600 candidates were interviewed on a single day also provides reason to believe that the selection process tended to be arbitrary. In any case there is room for such suspicion to be reasonably entertained. We are, therefore, of the opinion that the view taken by the High Court in this behalf is unassailable."

In Raj Kumar and Others Vs. Shakti Raj and Others, , the Apex Court came to the conclusion that the procedure for selection of candidates adopted was arbitrary and illegal and contrary to the provision of Punjab Public Works Department (Irrigation Branch) Patwaris State Service Class III Rules. In that case the State itself withdrew the appeal preferred against the judgment of the High Court quashing the selection.

It was found :

"Unfortunately, the Government chose to select candidates at their convenience, sometimes under 1955 Rules and sometimes under 1970 notification, according to their convenience. But in this case they have dispensed with both and instead constituted a Committee for selection of the candidates having excluded from the purview of 1970 notification, that too after written examinations were conducted under 1955 Rules."

It is only in that situation the decision of the Supreme Court in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, was distinguished.

In Bihar Public Service Commission and another Vs. State of Bihar and others, against the selection process was found to be wholly arbitrary and illegal. In that case the High Court had issued a writ of mandamus whereby only the appointment made pursuant thereto was set aside but other appointments already made were not disturbed.

Furthermore in that case an enquiry conducted under High Court''s order showed that gross irregularities were committed by the board in the test and in the selection and despite. the fact that the board was superseded, it had published a large panel being the third merit list which was held to be wholly without jurisdiction.

The decision of Shrilekha Viddharthy (supra) was rendered in the peculiar facts of the case and the said decision cannot be said to have any application whatsoever as therein the services of the strict prosecutors were sought to be terminated although they had a right to hold the post during their tenure.

In Biswa Ranjan Sahoo and others Vs. Sushanta Kumar Dinda and Others, a mass malpractice was committed. In that case the tribunal had called for the records and found that there had been interpolations in the mark-sheets. It was in that situation held that in such situation even the principles of natural justice have no application.

In Harpal Kaur Chahah (Smt) v. Director, Punjab Instructions , the Apex Court merely held that illegality once committed cannot be pleaded to legalise other acts. The said decision has also no application as no such illegality committed by the Durgapur Steel Project earlier had been brought to this court''s notice.

Even this court in earlier writ petition filed by Ajoy Kumar Karmakar & Ors. being CO. No. 8601(W)/95 has merely directed the authorities to appoint these candidates whose experience certificates might be found to be genuine and they had fulfilled all other criterias laid down for their appointment. The said decision of this court can neither be said to be contrary to law nor can be termed as illegal. In fact, the said decision is in tune with the submissions made by the writ petitioners themselves that nobody should be deprived from consideration for appointment when he fulfils all the essential criterias.

It is only in the aforementioned back drop the question of the petitioners'' locus standi had to be considered although in view of the finding aforementioned the said question has become academic. In a recent decision a division bench of this court in Steel Authority of India Ltd. v. Nayan Kumar Roy & Ors. reported in 1998(2) CLJ 125 inter alia, held :

"The petitioners had not succeeded in the written examination and, thus, they were not called for at the interview. The right to be appointed, if any, in conferred only on a person who is eligible therefor. Even an empanelled candidate has no right to be appointed. Assuming that there had been a change in the mode of recruitment, the petitioners had appeared at the written test without any demur whatsoever. The petitioners in no uncertain terms admitted that they appeared at the written examination without any protest. They, thus, took a chance by sitting on the fence and thus, could not have been permitted to turn round and the question the mode of selection itself."

This court, relied upon the decision of the Apex Court in Munindra Kumar and others Vs. Rajiv Govil and others, and Madan Lal and Others Vs. State of Jammu and Kashmir and Others, .

Reference in this connection may also be made to University of Cochin, Rep., by its Registrar, University of Cochin Vs. N.S. Kanoonjamma and others, .

There cannot be any doubt whatsoever that the doctrine of ''locus'' has been widened. The principles of ''person aggrieved'' might have undergone a quantum jump. But the question of locus has to be considered in the facts and circumstances of each case. It cannot be said that in each case, a person who has taken part in the selection process is estopped from questioning the same inasmuch as if an action has been taken in contravention of a statute or the Constitution of India, rule of estoppel will not apply. The principles of acquiescence in such a situation also may not apply. For the purpose of applicability of the doctrine of waiver it must be shown that a person has waived his right upon knowing the same. On the other hand, unsuccessful candidates cannot be said to have any locus when they merely asked the court to go into the respective merits of the candidates; and such a writ application would not be maintainable far less at the hands of the unsuccessful candidates. An unsuccessful candidate, however, may have a locus when the entire selection process is vitiated or the same is farcical in nature or where on the face of the documents favouratisnr and neoptism on the part of the person taking part in the selection process becomes evident; or in a case where interpolation, forgery and fraud, have been committed. In such cases all orders and action taken by the authorities stand vitiated. Where an action is vitiated in law, there cannot be any doubt whatsoever that the court can, in a given case, exercise its discretion under Article 226 of the Constitution of India.

In Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , it has been held :

"Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination."

In University of Cochin v. H. S. Kanjoonjamma & Ors. reported in 1997(2) SLR 606, the Apex Court has held :

"In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure."

In Balbir Singh, Constable & Ors. v. The State of Punjab & Ors. reported in 1983(1) SLR 109, it has been held :

"The contesting petitioners are all persons who competed in the test and took their chance like others did. The mere fact that they have been unsuccessful does not give them the right to turn around and challenge the selection. No question of Article 16 of the Constitution can get involved in such a situation."

In Dr. Siddhant K. Mishra v. University of Delhi & Ors., reported in 1997(1) SLR 474, the Delhi High Court has held that if a person participates in the selection process with the full knowledge of the constitution of the selection committee, could not or would not fall such selection after he failed to be selection.

In Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, , the Apex Court held :

"It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or paramaterial irregularity in the constitution of the Committee of its procedure vitiating the selection, or proved male fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and sitting in appeal over the selection so made and setting it aside on the ground of the so-called comparative merits of the candidates assessed by the Court, the High Court went wrong and exceeded its jurisdiction."

In B. K. Sharma & Ors. v. State Bank of India reported in 1998(1) SLR 143, a division bench of the Himachal Pradesh High Court held :

"In University of Cochin v. N. S. Kanjoon Jamma & Ors. etc. 1997(2) SLR 606 the Supreme Court pointed out that the first respondent also had applied for and sought selection but remained unsuccessful. Hence, the court held that having participated in the selection, she was estopped to challenge the correctness of the procedure adopted by the Selection Committee.

In the circumstances, we have no hesitation to hold that the petitioners herein are estopped from challenging the validity of the procedure adopted by the selection committee for the purpose of granting promotion."

In Union of India & Anr. v. N. Chandrasekharan & Ors. reported in 1998(1) SLR 612, it has been held :

"It is also relevant to point out that though in the pleading vaguely mala fides was raised, nothing was established nor the Tribunal discussed about it. In the absence of any mala fides pleaded and established and in the facts and circumstances of this case, the importance given to the interview cannot by any means be termed as arbitrary or violative of Article 14 or 16 of the Constitution."

In The Chancellor and Another Vs. Dr Bijayananda Kar and Others, , it was observed:

"This court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfils the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection. In the present case Dr. Kar in his representation before the Chancellor specifically raised the issue that Dr. Mohapatra did not possess the specialisation in the ''Philosophical Analysis of Values'' as one of the qualifications. The representation was rejected by the Chancellor. We have no doubt that the Chancellor must have looked into the question of eligibility of Dr. Mohapatra and got the same examined from the experts before rejecting the representation of Dr. Kar."

In this case the petitioners Bholanath Chakraborty & Ors. had not made any complaint as regard selection process. The procedures laid down for selecting the candidates have also not been questioned on the ground that the same are ultra, vires Articles 14 and 16 of the Constitution of India. It is noteworthy that initially Bholanath Chakraborty & Ors. did not file any writ application questioning the selection of the 130 candidates. When some of the candidates namely, Ajoy Kumar Karmakar & Ors. filed a writ application and they were directed to be appointed upon verification of their certificates, even then, no writ application was filed by the unsuccessful candidates. When after the second writ application was filed by Ajoy Kumar Karmakar & Ors., Bholanath Chakraborty and Ors. filed the writ application. It has not been disputed that Bholanath Chakraborty himself was not eligible for appointment and he tried to mislead the management as regard his date of birth and the name of the school where he had studied.

In the peculiar facts and circumstances of this case it must be held that the unsuccessful candidates could not have maintained this writ application nor are they entitled to any relief for the forgoing reasons. The writ petition filed by Bholanath Chakraborty & Ors. being C. O. No. 12333(W)/95 is therefore, dismissed. The candidates who have provisionally been appointed by the order of this court and those whose certificates have been found to be genuine and otherwise also found to be fit for appointment would continue to be employed. C. O. No. 14549(W)/95 filed by Ajay Karmakar & Ors. and CO. No. 22245(W)/95 filed by Kajal Mukherjee & Ors. are disposed of accordingly. But there will be no order as to costs.