2013(2) ALL MR 94
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
S.J. VAZIFDAR AND F.M. REIS, JJ.
Shri Daulatrao V. Rane Sardessai Vs. The State Of Goa & Ors.
Writ Petition Nos. 568 of 2012,Writ Petition Nos.616 of 2012
21st December, 2012
Petitioner Counsel: Mr. Nitin Sardessai
Respondent Counsel: Mr. A.N.S. Nadkarni,Mr. P. Vernekar,Mr. A.N.S. Nadkarni,Mr. H.D. Naik,Mr. S.D. Lotlikar,Mr. H. Chodankar
(A) Constitution of India, Art.320 - Select list of candidates - Mere entry of name does not give candidate a right to be appointed.
It is settled law that the mere entry of the name of a candidate in the select list does not give him a right to be appointed, even though vacancies to be filled exist. The Government is not bound to make the appointments. It may refuse to do so for valid reasons including financial constraints or administrative exigencies. [Para 23]
(C) Constitution of India, Art.320 - Selection process - Shortlisting of candidates - Propriety.
subject to a bar implied or express to shortlist, a Commission is entitled to shortlist a candidate. The mode of shortlisting must be fair and reasonable. Whether it is so or not would depend upon the facts of the case. In the instant case Goa Public Service Commission proceeded on the basis that it was necessary to resort to shortlisting as it would be difficult to interview all the applicants. it was entitled to do so. While the Rules and Regulations did not authorize the GPSC to resort to shortlisting, they did not prohibit the GPSC from doing so either. They did not contain any reference to shortlisting. Fixing minimum marks is only one of the possible ways of shortlisting. [Para 35,37,38]
(D) Goa Public Service Commission (Rules of Procedure) (1988), Rr.12(3), 12(4) - Selection process - Difference between shortlisting and prescribing minimum qualifications.
The difference between prescribing minimum qualifications and shortlisting candidates is this. Shortlisting candidates is from among candidates who are qualified. In other words, for the purpose of administrative convenience in certain circumstances such as where there are a large number of qualified candidates, only some are chosen on the basis of the stipulated parameters. Shortlisting is, therefore, from amongst qualified candidates. That is an entirely different exercise from prescribing a qualification.
(2003) 11 SCC 559 Rel. on.
(1999) 7 SCC 120 Disting. [Para 47]
(E) Constitution of India, Art.320 - Selection process - Receipt of complaints from candidates - Not per se a ground to reject select list.
The mere receipt of complaints cannot justify the select list being rejected. It is necessary to ascertain whether the complaints were at all considered by the Government. If it is found that the complaints were considered and analyzed the Governments assessment thereof ought not to be interfered with lightly. Even assuming that the Court perceives or assesses the situation differently it ought not to substitute it's assessment for that of the Government. [Para 64]
(F) Constitution of India, Art.320 - Selection process - Written test and interview - Mere fact that selected candidate had secured lower marks in written exam would not indicate any mala fides or impropriety in selection process.
It is indeed not always that a person who scores high marks at the written examination does as well or well in the interview and vice- versa. The importance of an interview can never be undermined. It often helps in appointing the most suitable candidate for the post. It happens ever so often that a candidate who scores lower marks in the written examination is found to be more suitable for a post than the one who scored higher marks at the written examination. This is a subjective fact dependent considerably upon the perception of the interview panel. Thus, the mere fact that a candidate is selected in preference to another although he scored lower marks at the written examination would not indicate any mala fides or impropriety in the selection process. [Para 66]
(G) Constitution of India, Art.320 - Selection of candidates by Commission - Complaints regarding interview process - It is for Government to decide whether there is substance in grievance - It can reject selection and order fresh selection - It is not bound to order an independent enquiry before taking a decision whether to accept selection list or not. (Paras 67, 69, 72, 74)
R.V. Gaitonde Vs. State of Goa & ors., 2001 (11) L.J. Soft 32 : 2001(4) Bom.C.R. 490 [Para 20,71]
Jitendra Kumar Vs. State of Haryana, (2008) 2 SCC 161 [Para 21,73,76]
East Coasts Railway Vs. Mahadev Appa Rao, 2010 ALL SCR 1873=2010 (7) SCC 278 [Para 22,69,75]
State of Haryana Vs. Subash Chander Marwaha, (1974) 3 SCC 220 [Para 24,52]
Jatinder Kumar Vs. State of Punjab, 2010 ALL SCR (O.C.C.) 91=(1985) 1 SCC 122 [Para 25]
Asha Kaul Vs. State of J & K, (1993) 2 SCC 573 [Para 26]
R.S. Mittal Vs. Union of India, 1995 Supp (2) SCC 230 [Para 27,28]
State of Punjab Vs. Manjit Singh, (2003) 11 SCC 559 [Para 36,47,50,52]
B. Ramakichenin Vs. Union of India, 2008(1) ALL MR 480 (S.C.)=(2008) 1 SCC 362 [Para 38]
Preeti Srivastava (Dr.) Vs. State of M.P., (1999) 7 SCC 120 : AIR 1999 SC 2894 [Para 49]
Sadhana Devi (Dr.) Vs. State of U.P., (1997) 3 SCC 90 [Para 50]
State of Orissa Vs. Gopinath Dash, (2005) 13 SCC 495 [Para 60]
Shrijee Sales Corporation Vs. Union of India, 1997(3) SCC 398 [Para 78]
-S.J. Vazifdar, J. :- Both the Writ Petitions involve the same questions and are accordingly disposed of by this common judgment. There is one petitioner in Writ Petition No. 568 of 2012 and there are two petitioners in Writ Petition No. 616 of 2012.
We will refer to the facts as stated in Writ Petition No. 616 of
2. The petitioners seek a Writ of Certiorari to quash and set aside a decision of the Government of Goa, taken in its 'Cabinet Meeting' held on 23rd May, 2012 (in Agenda Item No.18), not to accept the recommendations of Respondent No.2 - Goa Public Service Commission (GPSC) in regard to the selection to 9 (nine) vacancies to the post of 'Junior Scale Officer of Goa Civil Service'. The petitioners have also sought a Writ of Mandamus commanding the respondents to accept the said recommendations of GPSC pursuant to advertisement No. 2 of 2011 as modified by advertisement No. 4 of 2011.
3. By the said advertisement No. 2 of 2011 issued on 11th February, 2011, the GPSC invited applications in respect of 9 vacancies for the said post of which 4 were reserved for ST (Schedule Tribes), 2 for OBC (Other Backward Classes), 2 for PH (Physically Handicapped) and 1 for CFF (Children of Freedom Fighter). The second advertisement No. 4 of 2011 issued on 25th March, 2011 modified the advertisement No. 2 of 2011 by inviting applications for 3 vacancies from candidates belonging to the General Category and reserving 3 posts for Schedule Tribes and 1 post each for OBC, PH and CFF.
Both the advertisements inter alia provided as under :
“Note: The eligible applicants will be subjected to a competitive examination. The syllabus is published in Official Gazette Series I. No. 12 dated 20.06.2002. The written examination consist of 250 marks the details of which are as follows :
Paper-I English 100 marks (3 hours duration)
Paper-II General Studies
Part-I Descriptive 60 marks (1 ½ hours duration)
Part-II Objective 90 marks (1 ½ hours duration)
Only eligible candidates will be admitted to the competitive written examination. The written examination will be followed by an Oral Interview, details there about will be provided in the interview call letter. The number of candidates to be called for interview will be restricted to maximum 1:5 which will be in the order of merit based on the performance in the competitive written examination. The final selection will be in order of merit based on the combined marks secured by the candidate interviewed in the competitive written examination and oral examination.”
4. It is not necessary to refer to the petitioners qualifications as admittedly they were eligible to be considered for appointment to the said posts. The petitioner in Writ Petition No. 568 of 2012 applied for the post in the category for "Children of Freedom Fighter' and the two petitioners in Writ Petition No. 616 of 2012 applied for the posts reserved for the 'Other Backward Classes' category and in the 'General Category' respectively.
5. On 21st August 2012, the written examination was conducted by GPSC as required. The details of the successful candidates at the written examination which included the petitioners and the marks obtained by them, were displayed on the notice board and GPSC's website.
6. The interview was restricted to a maximum of 1:5 candidates meaning thereby that five candidates would be invited for interview for each post. Thus 45 candidates were invited for the interview. As stated earlier 3 posts were for the General Category and 3, 1, 1 and 1 posts were reserved for Schedule Tribe, Other Backward Classes, Physically handicapped and Children of Freedom Fighter. The ratio of 1:5 was applied with respect to each of the said categories. Thus, 15, 15, 5, 5 and 5 candidates whose marks were the highest in each of the respective categories were selected for the interview.
The candidates who scored the highest marks in each of the categories were called for the interview irrespective of their marks. In other words a minimum qualifying mark at the written test was not stipulated.
8. GPSC, by a letter dated 6th March, 2012 addressed to the Special Secretary (Personnel) Department of Personnel, Government of Goa, enclosed the list of applicants recommended by them for being appointed to the said post in the order of merit. The letter stated that the interviews were conducted on the information furnished by the applicants supported by self-attested copies of certificates / documents; that the originals however had not been verified and that the recommendation was subject to medical examination, special inquiry into the antecedents and verification of the genuineness of the certificates / documents submitted by the selected applicants. It stated that an inquiry be held in this regard before issuance of appointment orders.
9. Elections of the Goa Legislative Assembly were declared by the Election Commission in December, 2011. The petitioners state that the Code of Conduct was in force till 13th March, 2012, as a result whereof the appointments could not be made. There was a change in the Government of Goa with the "Bhartiya-Janata Party" replacing the "Congress Party".
As the petitioners did not receive an order of appointment even after the expiry of the period during which the Code of Conduct was in force, they made inquiries. The inquiries revealed that the Government in its Cabinet meeting held on 23rd May, 2012 had taken the impugned decision not to accept the recommendations by the GPSC, made by its letter dated 6th March,12. The petitioner in Writ Petition No. 568 of 2012 obtained information under the Right to Information Act, 2005 which discloses the process leading to the impugned decision.
The respondents have at no stage withheld any information from the court. In fact, they have disclosed all the necessary information. The petitioners raised no grievance in this regard. The facts leading to the impugned decision reveal the decision making process which we will now refer to.
The first complaint was by a letter dated 14th March, 2012 written by one Vivek Krishna Naik, who stood first in the written examination and was not selected. The letter is to the following effect. Irregularities were committed by the GPSC in the interview process by using the same to select candidates for considerations other than merit. The range of marks given in the interview were so high that the interview had become the main criterion for the final selection. The marks to be allotted for the interview was not declared till the end. The range of marks were so drastic that they changed the entire merit list. Candidates who scored low marks in the written examination were given unusually high marks in the interview and the candidates who scored high marks at the written examination were given unusually low marks at the interview. An analysis of the results revealed manipulation of the marks and favoritism to certain candidates. He also alleged the following lapses in the recruitment process. The marks to be allotted to the interview had not been declared at any time during the entire recruitment process. Other State Public Service Commissions mention the marks to be allotted. The marks of the unsuccessful candidates were not declared, allocation of 20% for the interview had rendered the selection process arbitrary and there was no video recording of the interview.
12. The Government sought an explanation from the Chairman of the GPSC with respect to the said complaints. The Chairman by a letter dated 12th June, 2012 furnished a detailed explanation. In conclusion, the Chairman of the GPSC stated that if the Government was of the opinion that the method adopted by the Selection Committee regarding selection/ recruiting / shortlisting the candidates was not adequate or was discriminatory, the Personnel Department can suggest the methods which according to them were fool proof to avoid discrimination and allegations of arbitrariness or bias. He stated that the Commission was ready to redo the exercise at the request and as per the suggestions of the Government.
An explanation was also submitted by the Secretary of the GPSC.
13. The above explanation and material were placed before the Chief Minister by an office note dated 27/04/2012 prepared by the Personnel Department. The office note opined that there was no documentary evidence or "substantial truth" in the complaints and that the allegations therein were clearly dealt with by the Chairman. The Chief Minister however did not agree with the recommendation in the office note and made the following endorsement at the foot thereof:-
" 'X' above referred I do not agree. If we order an investigation there will be enough evidence that may surface. As of now there are too many complaints coming from different quarters and Government which claims of transparency cannot overlook perception. In the interest of justice and fairness we may however not raise any doubt and question mark on any person involved. I therefore direct C.S. to put up the matter before Cabinet for final decision as required under business rules."
14. The Personnel Department thereafter on or about 18th May, 2012 put up a further note stating that the Chief Minister had directed that the matter be placed before the Cabinet for a final decision. The note further stated that since the Government disagreed with the recommendations of the Commission, in terms of Rules 9 and 10 of the Business Rules the issue would be ordered to be taken up for circulation of the case or brought up for consideration at a meeting of the Council of Ministers. It also stated that the matter could be placed before the Cabinet for appropriate decision on the selection of the 9 candidates recommended by GPSC. The note contains the following endorsement made by the Chief Minister on 20/05/2012 at the foot thereof:-
"Advertisements were in the first instance invited way back in Feb 2011. Today we are in May 2012. Selection process itself has taken more than one year. During this period of delays large number of candidates have become eligible to apply and get selected. Further many more vacancies has (sic have) been created in the administration due to retirement, promotion and creation of new requirements. It is therefore essential that the selection process has to be completed in three months at the most. Fairness requires all those who are eligible now also should get opportunity to compete and only merit be the test, while choosing the best. The new system should have one examination. Those who qualify above a particular mark be called for interview and thereafter the selection ought to be done. This would be fair rather than the short listing process adopted by GPSC. Cabinet note approved."
"Cabinet may like to deliberate on the issue as contained above and decide as to whether the recommendation of the Goa Public Service Commission for selection of 09 candidates for Junior Scale post of Goa Civil Service, by direct recruitment, is to be accepted or otherwise".
16. (A) On 23rd May,2012, the Government in its VIth Cabinet Meeting decided against accepting the recommendation made by the GPSC in the light of the large number of complaints made regarding irregularities for the selection of the candidates for the said post.
(B) The Personnel Department accordingly by a further note of 12/06/2012 stated that as the Cabinet in its VIth meeting had not accepted the recommendation of the GPSC, the Government may move the proposal for filling up the 9 vacancies and other vacancies by direct recruitment and that the decision should be conveyed to the GPSC.
(C) GPSC was accordingly informed about the same by a letter dated 13th June, 2012.
17. Mr. Lotlikar, the learned Senior Counsel appearing on behalf of the petitioners in Writ Petition No.616 of 2012 and Mr. Nitin Sardessai, the learned counsel appearing on behalf of the petitioner in Writ Petition No.568 of 2012 submitted that the petitioners have gone through the entire process and were selected and recommended by the GPSC to be appointed to the said posts by respondent No.1 - State of Goa. They submitted that the entire process was not only in accordance with the prescribed procedures, Rules and Regulations but was also fair and just and no interference with the same was called for or justified. They submitted that the decision of the respondent No.1 not to accept the recommendation was arbitrary and without any valid or cogent reason.
18. The learned Advocate General on the other hand raised various submissions in support of the first respondent's decision not to accept the recommendation of the GPSC. He, inter alia, reiterated the reasons for the decision from the record which has been referred to earlier as well as those raised in the affidavit in reply. The respondent No.1 had received various complaints including the two written complaints which we have referred to. Upon the consideration thereof as well as the entire proceedings, respondent No.1 came to the conclusion that if an investigation was in fact ordered to be held there would be enough evidence. There were "too many complaints coming from different quarters". The Government could not overlook public perception. The Government however decided not to raise any doubt or question mark on any persons involved. The Government also decided not to hold an enquiry as the same would be time consuming. Subsequently, the Government has ordered an investigation. The selection processes commenced in February 2011 and over a year has passed. During this period, several other candidates would have become eligible to apply for the post and many more vacancies have been created in the administration due to additional requirements as well as on account of the retirement and promotion of some of the incumbents. All those who are eligible ought to get an opportunity to compete and only merit ought to be the test by choosing the best. It was further proposed that a new system should be introduced with one examination and those who qualified above a particular mark, ought to be called for the interview and thereafter the selection ought to be done. The same, it was felt, would be fair rather than the shortlisting process adopted by the GPSC.
The Government disagreed with the process of not first stipulating the cut off mark or bench mark in selecting candidates to appear for the interview. This was also contrary to the internal rules and the procedure of the GPSC. The learned Advocate General hastened to add that Rules were not permitted to be framed by the Government. The very concept of competitive examination requires a passing mark / percentage to be stipulated. The absence of a minimum passing mark has the possibility of burdening the Government with underqualified if not, incompetent persons. The GPSC was not entitled to take recourse to the method of shortlisting adopted by them. Even assuming that the shortlisting is permitted it ought to be of candidates who successfully passed an examination and not of all candidates who appeared at the examination. The object of the impugned decision was to ensure that the best talent was made available to the Goa Civil Service which, in turn, would protect the interest of the administration of the State. It was also to protect the interest of the larger number of candidates. Even assuming that the rights of the petitioners are affected due to no fault of theirs, the larger public interest warrants that the decision of the Government ought not to be interfered with. The results of the written examination, interviews, and finalizations of the recommendations were all done while the Code of Conduct was in force.
19. The Advocate General did not contend that the decision of the Government not to accept the select list recommended by the GPSC is not justiciable. The decision is indeed amenable to judicial review. He, however, contended that the scope of judicial review in this regard is limited. The decision, according to him, can be interfered with only on the ground that it is arbitrary or capricious or contrary to statutory provisions or violative of fundamental rights.
20. In R.V. Gaitonde v. State of Goa & ors. 2001 (11) L.J. Soft 32 : 2001(4) Bom.C.R. 490 the petitioner sought a direction for his appointment to the post of Principal of the Goa Pharmacy College and expunging the adverse remarks recorded in his Annual Confidential Report (ACR). It was contended on behalf of the State Government that the two issues namely appointment and A.C.R's ought to be considered separately and that even if the State Government had some tangible material before it to differ with the recommendation made by the Commission, it would be sufficient to uphold the decision of the State Government. The Division Bench held as under:-
"8. .......................................... At the same time, we may also refer to the decision of the Supreme Court in the case of Dr. H. Mukherjee (supra) as relied upon by Shri Nadkarni. On referring to its earlier judgment in the case of Jatinder Kumar (supra) the Apex Court, inter alia, observed:
(d) Assuming the decision taken by the ACC is justiciable, there can be no doubt that it can be challenged only on the ground that it smacks of mala fides or arbitrariness.
(f) It seems well settled that the function of the Public Service Commission being advisory, the Government may for valid reasons to be recorded on the file, disapprove of the advice or recommendation tendered by the Commission, which decision can, if at all, be tested on the limited ground of it being thoroughly arbitrary, mala fide or capricious.
9. In the instant case, the petitioner has challenged the decision of the State Government in rejecting the recommendation made by the Commission and the said decision is certainly justiciable. In a petition filed under Article 226 of the Constitution, the relief of appointment which has been sought may be an incidental relief and though it is well settled that such a right is not vested in favour of the petitioner, there is no case to reject the petition on the preliminary points, as the decision of the Government is justiciable, as is well established."
21. In Jitendra Kumar v. State of Haryana 2008 (2) SCC 161, the State of Haryana sent a requisition to the Haryana Public service Commission for filling up 58 posts in the Haryana Civil Services (Executive Branch) and 44 posts in Allied Service. The Commission issued the necessary advertisement which referred to a preliminary examination and stated that the posts on each category were liable to be varied; that the recruitment would be in accordance with the rules and that the combine competitive examination would comprise of a preliminary examination, the main written examination and viva-voce / personality test. The examinations were accordingly conducted. Thereafter, the State of Haryana sent a requisition for filling up of 19 vacancies in the Executive Branch by promotion of the in-service candidates in accordance with the Rules. Two thirds of the total available vacancies were to be filled up by direct recruitment and one third of the total available vacancies were to be filled up by promotions. As per the results to the main open competitive examination, 292 candidates were declared by the commission to have qualified themselves to appear for the viva-voce test. The interviews of the successful candidates were accordingly held. From time to time the cadre strength was revised. A committee recommended the cadre strength be fixed at 271. The State Government, however, found this figure inflated. Due to the Code of Conduct being in force on account of the said Legislative Assembly election appointments were not made. Writ Petitions were filed complaining of the undue delay on the part of the State in issuing orders of appointment. During the pendency of the petitions, a new Government took over, which by a Notification dated 13th May, 2005 reduced the cadre strength to 230. The Writ Petitions were accordingly amended. During the pendency of the matter before the Supreme Court, the State Government directed filling up some of the posts. The appellants impugned the decision to reduce the cadre strength. In the alternative, it was also contended that in any event certain posts were still vacant but there was no reason why the same could not be filled up. On the other hand, on behalf of the State Government, it was contended that the entire selection process was under a cloud, an inquiry had been initiated and the appointments were only suspended till the outcome of the inquiry. The Supreme Court held :-
"63. The fact that in some jurisdictions, doctrine of unreasonableness is giving way to doctrine of proportionality is beyond any dispute. (See Indian Airlines Ltd. v. Prabha D. Kanan9 and State of U.P. v. Sheo Shanker Lal Srivastava.) But, the development of law in this field could have been applied only if a case was made out. If the State is right in its contention that the selection process being under a cloud, no appointment can be made, the court by invoking any doctrine cannot ask the State to do so unless it arrives at a positive and definite finding that the State's stand is fraught with arbitrariness. We do not find any arbitrariness in its act."
22. The Advocate General submitted that it is not necessary for decisions such as these to contain reasons in support thereof. The reasons may be referred to and relied upon from other sources such as the files and papers leading to the decision. The submission is well founded. The Supreme Court in East Coasts Railway v. Mahadev Appa Rao, 2010 (7) SCC 278 : [2010 ALL SCR 1873] held:-
"23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Nonapplication of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable."
23. It is settled law that the mere entry of the name of a candidate in the select list does not give him a right to be appointed, even though vacancies to be filled exist. The Government is not bound to make the appointments. It may refuse to do so for valid reasons including financial constraints or administrative exigencies.
"7. In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45%. Their names were published in the Government Gazette as required by Rule 10(1) already referred to. It is not disputed that the mere entry in this list of the name of candidate does not give him the right to be appointed The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments. The High Court does not come into the picture for recommending any particular candidate. After the State Government have taken a decision as to which of the candidates in accordance with the list should be appointed, the list of selected candidates for appointment is forwarded to the High Court then will have to enter such candidates on a Register maintained by it. When vacancies are to be filled the High Court will send in the names of the candidates in accordance with the select list and in the order they have been placed in that list for appointment in the vacancies. The High Court, therefore, plays no part except to suggest to the Government who in accordance with the select list is to be appointed and in a particular vacancy. It appears that in the present case the Public Service Commission had sent up the rolls of the first 15 candidates because the Commission had been informed that there are 15 vacancies. The High Court also in its routine course had sent up the first 15 names to the Government for appointment. Thereupon the Chief Secretary to Government, Haryana wrote to the Registrar of the High Court on May 4, 1971 as follows:
"I am directed to refer to Haryana Government endst No. 1678-1 GS, II-71/3802, dated April 22, 1971, on the subject noted above, and to say that after careful consideration of the recommendations of the Punjab and Haryana High Court for appointment of first fifteen candidates to the Haryana Civil Service (Judicial Branch), the State Government have taken the view that it would be appropriate that only the first seven candidates should be appointed to the Haryana Civil Service (Judicial Branch) and a notification has been issued accordingly. The reason is that in the opinion of the State Government, only those candidates who obtained 55% or more marks in the Haryana Civil Service (Judicial Branch) Examination, should be appointed as that will serve to maintain a minimum standard in the appointments to the Service. It may be mentioned that the last candidate appointed against un-reserved vacancies out of the merit list prepared on the basis of the Haryana Civil Service (Judicial Branch) Examination held in May 1969, secured 55.67% marks.
The State Government have also received information that the Punjab and Haryana High Court themselves recommended to the Punjab Government that in respect of P.C.S. (Judicial Branch) Examination held in 1970, candidates securing 55% marks or more should be appointed against un-reserved vacancies. Thus, the decision taken by Haryana Government is in line with the recommendations which the High Court made to the Punjab Government regarding recruitment to the P.C.S. (Judicial Branch) on the basis of the Examination held in 1970, and a similar policy in both the cases would be desirable for obvious reasons."
8. This will clearly go to show that the High Court itself had recommended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate Judges and the Haryana Government in the interest of maintaining high standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration."
25. In Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122 : [2010 ALL SCR (O.C.C.) 91], the Inspector General of Police sent a requisition to the Selection Board to select and recommend 7 suitable candidates for the post of Assistant Sub-Inspector Police. While the matter was pending, the board was required to recommend 57 persons for the post. The appellant, along with others, was interviewed and tested, but before the select list could be finalized by the board, the IGP requested the board to recommend 170 more persons for the post. Thus, 227 candidates were to be recommended to the said posts. The board recommended a panel of 144 candidates over a proposal for disbandment of the Punjab Armed Police Battalion instead of creation of additional post for the District Police, as a result of which the 170 additional posts which were anticipated, were turned down by the Government. Thus, the 170 vacancies were not available and only 57 posts were filled in. The remaining candidates, though recommended by the board, were not appointed. They, therefore, sought appointments to the said posts and also questioned the appointments made. The Supreme Court held as under : -
"11. Article 320 of the Constitution enumerates the duties to be performed by the Union or the State Public Service Commissions:
"(i) to conduct examinations for appointments to the services of the Union and the services of the State respectively;
(ii) if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required;
(iii) to advise on matters enumerated under clause (3) of Article 320; and
(iv) to advise on any matters so referred to them and any other matter which the President, or as the case may be, the Governor of the State may refer to them."
The fact that there is no provision in the Constitution which makes the acceptance of the advice tendered by the Commission, when consulted, obligatory renders the provisions of Article 320(3) only directory and not mandatory.
12. The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. It is true that they are appointed by Government but once they are appointed their independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a higher public office it is required to consult the Public Service Commission. The selection has to be made by the Commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission. The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution. This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N. D'Silva v. Union of India and State of Haryana v. Subash Chander Marwaha. The contention of Mr Anthony to the contrary cannot be accepted.
16. An argument of desperation was further advanced about promissory estoppel stopping the State Government from acting in the manner it did in not appointing the appellants although their names had been recommended. The notification issued by the Board in this case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts. It did not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. When the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of additional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State."
26. In the present case the select list has not even been accepted by the State Government. However as rightly submitted by Mr. Lotlikar and Mr. Sardessai, the Government cannot, without good and valid reason, nullify the whole exercise leading to the preparation of the select list. It may do so only on valid grounds and not arbitrarily. In Asha Kaul v. State of J&K, (1993) 2 SCC 573 the Supreme Court held as under:
"7. Construed in the above light, Rule 39, in our opinion, does not confer an absolute power upon the Government to disapprove or cancel the select list sent by the Public Service Commission. Where, however, the Government is satisfied, after due enquiry that the selection has been vitiated either on account of violation of a fundamental procedural requirement or is vitiated by consideration of corruption, favouritism or nepotism, it can refuse to approve the select list. In such a case, the Government is bound to record the reasons for its action, and produce the same before a court, if and when summoned to do so, apart from placing the same before the legislature as required by clause (2) of Article 323. Indeed, clause (2) of Article 323 obliges the Governor of a State to lay a copy of the annual report received from the Commission before the legislature "together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted (and) the reasons for such non-acceptance". Evidently, this is meant as a check upon the power of the Government. This provision too militates against the theory of absolute power in the Government to disapprove or reject the recommendations of the Commission. For the same reason, it must be held that the Government cannot pick and choose candidates out of the list. Of course, where in respect of any particular candidate any material is discovered disclosing his involvement in any criminal activity, the Government can always refuse to appoint such person but this would not be a case touching the select list prepared and recommended by the Commission. It is equally not open to the Government to approve a part of the list and disapprove the balance. In this case, it may be remembered that the Government itself had asked for a list of twenty and the Commission had sent a list of twenty. (We are not concerned with the waiting list sent by the Commission, at this stage.) It could not have been approved in part and rejected in part. The number of vacancies available on the date of approval and publication of the list is not material. By merely approving the list of twenty, there was no obligation upon the Government to appoint them forthwith. Their appointment depended upon the availability of vacancies. A reading of Rule 41 makes this aspect clear. The list remains valid for one year from the date of its approval and publication. If within such one year, any of the candidates therein is not appointed, the list lapses and a fresh list has to be prepared. In this case, no doubt, a number of complaints appear to have been received by the Government about the selection process. We have seen the note file placed before us. It refers to certain facts and complaints. But if the Government wanted to disapprove or reject the list, it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded. Not having done that and having approved the list partly (thirteen out of twenty names), they cannot put forward any ground for not approving the remaining list. Indeed, when it approved the list to the extent of thirteen, it ought to have approved the entire list of twenty or to have disapproved the entire list of twenty. The objections the Government have pertain to the very process of selection i.e., to the entire list, and not individually to any of the remaining seven candidates.
8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha1; Mani Subrat Jain v. State of Haryana2; State of Kerala v. A. Lakshmikutty3) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, - in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government - the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India4 where the earlier decisions of this Court are also noted. The following observations of the Court are apposite: (SCC pp. 50-51, para 7) "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha1, Neelima Shangla v. State of Haryana5 or Jatendra Kumar v. State of Punjab6." (emphasis supplied)
"10. The Tribunal dismissed the application by the impugned judgment on the following reasoning :
(a) The selection panel was merely a list of persons found suitable and does not clothe the applicants with any right of appointment. The recommendations of the Selection Board were directory and not mandatory and were not therefore enforceable by issue of a writ of mandamus by the Court.
(b) The letter of Ministry of Home Affairs dated 8-2-1982 which extends the life of panel till exhausted is not relevant in the present case. In the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July 1989.
It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."
28. Mr. Lotlikar relied upon the Judgment of the Supreme Court in R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 to contend that once a recommendation is made by the selection board and a vacancy exists, the appointment must be made. We do not agree. Firstly, there is nothing in the judgment that indicates a departure from the principles which we have referred to. Secondly, the observations relied upon by Mr. Lotlikar have been made in view of the nature of the selection board which was headed by a sitting Judge of Supreme Court itself. Thirdly, this was a case where there was complete inaction on the part of the Government. It is in this context that the following observations relied upon by Mr. Lotlikar ought to be read :
"6. Assuming that there was only one vacancy as claimed by the Central Government, there was gross delay on the part of the Central Government in initiating action to fill the same. The vacancy became available on 14-8-1988 and, according to the chart placed on record by the Central Government; the action was initiated on 28-2-1989. We fail to understand what the Government meant by the expression "initiating action". The character and antecedents verifications, if any, should have been got done as soon as the recommendation of the Selection Board was received. No material has been placed on record and none was brought to our notice during the course of arguments to show as to why the Central Government could not initiate action as soon as the vacancy was made available. Needless to say that the recommendation of the Selection Board headed by a sitting Judge of this Court was gathering dust in the records of the Ministry concerned since 25-1-1988. We take serious view of the matter and we direct that any recommendation of a Selection Board which is headed by a sitting Judge of this Court must be given prompt and immediate attention. Once there is a recommendation by such a Selection Board, nothing should intervene between the recommendation and the consideration by the Appointments Committee of Cabinet (ACC). The Minister/Secretary in the Administrative Department is under a legal obligation and is duty-bound to process the recommendation of the Selection Board by giving it a top priority and place the same before the ACC within a reasonable time. In the present case though the action was stated to be initiated on 28-2-1989 the reference to the ACC was made on 1- 5-1989. We direct that the recommendations of the Selection Board headed by a sitting Judge of this Court must be placed before the ACC expeditiously and preferably within two months from the date of recommendation.
11. On the facts of this case, it is not necessary for us to go into the question of applicability of various instructions relied upon by the Tribunal. Even if there are any instructions which provide that a select panel shall remain operative for one and a half years, the said period in our view is sufficient for the Central Government to exhaust the select panel of the type with which we are concerned in this case. We have already indicated the time-bound procedure to be followed in dealing with the select panel of this type."
The direction was in respect of the recommendations of a selection board headed by a sitting Judge of the Supreme Court. We do not read the judgment as diluting the power of the Government in cases such as the one before us. Moreover, in that case there was "mere inaction" on the part of the Government and no reason was given for the same. The Supreme Court did hold as a general principle that where the person has been selected by the selection board and there is a vacancy which can be offered to him, ordinarily there is no justification to ignore him for appointment. The question before us is whether in the present case there was any justification for ignoring the petitioners for appointment.
29. We will first deal with some of the contentions of the learned Advocate General regarding the process adopted by the GPSC and thereafter deal with the case regarding the complaints and the Government perception thereof and actions pursuant thereto.
30. The learned Advocate General relying, upon Rules 7 and 9 of the Goa Civil Services Rules, 1997, which are gazetted, contended that the same contemplated of a written examination and did not, therfore, permit interviews to be held. He submitted that these were the Rules in force at the relevant time having been made by the Government in exercise of the powers under Article 309 of the Constitution in consultation with the Goa Public Service Commission. Rules 7 and 9 read as under :-
"7. Competitive examination.- A competitive examination for direct recruitment to the Service shall be conducted by the Commission, in the manner notified by the Government, from time to time. The dates on which and the places at which the examination will be held, shall be fixed by the Commission.
9. List of successful candidates.- The Commission shall forward to the Government a select list, arranged in the order of merit of the candidates, who have qualified by such standards as the Commission may determine."
32. The submission is not well founded. Mr. Lotlikar's submission that a competitive examination does not refer to only a written examination is well founded. It includes interviews and practical tests or a combination thereof. There is no warrant for restricting competitive examinations to written examinations. We are unable to understand the basis of the submission that the phrase competitive examination refers only to written examinations. This has, in fact, never been the understanding of the Goa Public Service Commission.
"5. Basic functions of the Commission and steps to be taken :
(1) The basic functions of the Commission and the broad steps to be taken to enforce the same can be achieved through the conduct of all or any one or more of the following examinations to assess the suitability of the candidates considered for recruitment to a service or post.
. Written examination, also calle d competitive examinations
. Practical test
. Physical efficiency test
. Oral test (Interview)
. Any other test or examination which the Commission may deem fit to hold.
[a] Written Examination : Where any competitive examination is to be held for the purpose of recruitment to a service or post in connection with the affairs of the State, and consultation with the Commission is required, the Commission shall -
(i) Advise the Government of Goa or the Appointing Authority, as the case may be, with regard to the matters prescribing the qualifications of candidates, conditions of admission to the examination, scheme and syllabus of the examination, etc. :
(ii) Announce the number of vacancies to be filled from among the candidates applying for the examination :
(iii) appoint paper setters, moderators, examiners, supervisors, invigilators etc. :
(iv) make all arrangements for the actual conduct of the examinations :
(v) determine the qualifying standards for the examinations :
(vi) constitute Interview Committees, by the Chairman, for interviewing the candidates declared qualified for personality test / viva voce:"
The Rule by itself does not really answer the question either way conclusively. On the one hand, it states "Written examination, also called competitive examinations" suggesting that competitive examinations are only written examinations. On the other hand, the caption to clause (a) of Rule 5 is "Written Examination". Sub-clause (vi) thereof, however, also requires the Chairman of the GPSC to constitute interview committees for interviewing candidates declared qualified for personality test / viva-voce suggesting thereby that interviews are also contemplated as a part of the selection process.
34. The Advocate General submitted that the entire selection process is vitiated on account of the GPSC having shortlisted candidates though the Rules and Regulations did not confer power upon or authorize the GPSC to do so.
35. 1545 candidates applied for the posts. It is reasonable to presume that the GPSC justifiably expected a large number of persons to apply for these nine posts. The GPSC, therefore, proceeded on the basis that it was necessary to resort to shortlisting as it would be difficult to interview all the applicants. In our opinion, it was entitled to do so. While the Rules and Regulations did not authorize the GPSC to resort to shortlisting, they did not prohibit the GPSC from doing so either. They did not contain any reference to shortlisting.
36. Mr. Sardessai's reliance upon the judgment of the Supreme Court in State of Punjab v. Manjit Singh, (2003) 11 SCC 559 is well founded. The main question in that case was whether it was competent for the Punjab Public Service Commission to resort to a screening test with a view to shortlist the number of candidates to bring to the ratio of 3:5 candidates per vacancy and whether keeping in view the efficiency required for the services in respect of which selection and appointments were to be made, a written test could be held to fix a minimum cut-off mark where the process of selection was by interview of eligible candidates belonging to the reserved category. The Punjab Public Service Commission issued an advertisement for recruitment if any of 500 medical officers. Candidates belonging to the reserved categories had also applied. The Commission scrutinized the applications and decided to hold a screening test for all categories. 59 out of 279 candidates who appeared as SC (general) candidates cleared the test although 125 seats were reserved for, if any, SC candidates. Even among the SC candidates, posts were reserved for Balmikis and Mejhbi Sikhs and the remaining were for the general category of SCs. Even in these categories, candidates less than the reserved seats cleared the test. The Commission had fixed 45% cut-off marks for the general category candidates and 40% cut-off for the SC candidates for their consideration for the selection. The selection was only by interview of eligible candidates on the basis of their educational qualifications. Thus, what fell for the consideration of the Supreme Court was whether the Commission was entitled to shortlist candidates and whether the fixation of the minimum marks for consideration for the selection was valid. Thus, two aspects fell for consideration viz. whether the Commission was entitled to shortlist candidates and whether the fixation of the minimum marks was valid. We are at present concerned with the first aspect. The Supreme Court held :-
"7. Now adverting to the point under consideration, it may be observed that so far as the powers and functions of the Commission in shortlisting of candidates are concerned, there can certainly be no doubt about it. Say, for example, 10,000 candidates apply for recruitment to 100 posts, it would obviously not be possible to take full test/examination and interview of such a large number of applicants, though eligible. In that event shortlisting of the candidates by screening out those, in respect of whom it would serve no purpose to call them for further test, may be excluded by adopting the method of screening test. Generally speaking, a ratio of 3:5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out about first 500 candidates for further tests/interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method of shortlisting can raise any grievance whatsoever.
8. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut-off marks are fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100, in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain proportion of the number of vacancies, may be shortlisted in order of merit from Serial No. 1 up to the number of candidates required.
10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8000 or 6000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks."
37. The ratio of the judgment is not based on the existence of the power to shortlist in the Rules and Regulations. The facts narrated in the judgment do not indicate the existence of any such authority or power in the Rules and Regulations. It follows, therefore, that subject to a bar implied or express to shortlist, a Commission is entitled to shortlist a candidate. The mode of shortlisting must be fair and reasonable. Whether it is so or not would depend upon the facts of the case.
In paragraphs 9 and 11, the Supreme Court dealt with the validity of the Commission having fixed the minimum qualifying marks. This question is not relevant while dealing with the question of shortlisting in the case before us for admittedly the GPSC has not fixed a minimum qualifying mark. We will deal with that aspect separately.
38. (A). The power of the GPSC to resort to shortlisting is further established by the judgment of the Supreme Court in B. Ramakichenin v. Union of India, (2008) 1 SCC 362 : [2008(1) ALL MR 480 (S.C.)] relied upon by Mr. Sardesai. The Supreme Court held:-
"15. It is well settled that the method of shortlisting can be validly adopted by the selection body vide M.P. Public Service Commission v. Navnit Kumar Potdar (vide paras 6, 8, 9 and 13) and Govt. of A.P. v. P. Dilip Kumar.
16. Even if there is no rule providing for shortlisting nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a shortlisting procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of shortlisting can be resorted to by the selection body, even though there is no mention of shortlisting in the rules or in the advertisement."
(B) The Supreme Court interfered in the process only because the prescribed method of shortlisting was not adhered to. The Supreme Court held :-
"18. In the present case, no doubt, UPSC had resorted to an objective and rational criteria that only those who have two years' experience after getting MSc degree will be considered, while those who have got such experience but only before getting MSc degree will not be called for the interview. Ordinarily we would not have taken exception to this procedure since it is based on an objective criteria, and ordinarily this Court does not interfere with administrative decisions vide Tata Cellular v. Union of India. As observed in the said decision, the modern approach is for courts to observe restraint in administrative matters.
19. Hence, if the method of shortlisting had not been prescribed by UPSC or in a statutory rule, it is possible that the argument of learned counsel for the respondents may have been accepted and we may not have interfered with the method of shortlisting adopted by UPSC since it appears to be based on a rational and objective criteria.
20. However, in this case we have noticed that in Para 3.1 of the advertisement of UPSC dated 23-5- 1998, the method of shortlisting has been given. Hence UPSC cannot resort to any other method of shortlisting other than that which has been prescribed in Para 3.1. In the said paragraph of the advertisement, it is mentioned that the Commission may restrict the number of candidates on the basis of either qualifications and experience higher than the minimum prescribed in the advertisement or on the basis of the experience higher than the minimum prescribed in the advertisement or on the basis of experience in the relevant field. In other words, it was open to UPSC to do shortlisting by stating that it will call only those who have PhD degree in Agriculture (although the essential degree was only MSc degree in Agriculture). Similarly, UPSC could have said that it would only call for interview those candidates who have, say, five years' experience, although the essential requirement was only two years' experience. However, experience after getting MSc degree cannot be said to be higher than the experience before getting MSc degree. Also, the advertisement dated 23-5-1998 does not mention that two years' experience must be after getting MSc degree."
(C) The learned Advocate General, however, relied upon the observation in paragraph 17 to contend that shortlisting could only be done by fixing a minimum mark. Paragraph 17 reads as under :-
"17. However, for valid shortlisting there have to be two requirements - (i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a BSc degree, and if there are a large number of eligible applicants, the selection body can resort to shortlisting by prescribing certain minimum marks in BSc and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of shortlisting is only a practical via media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed."
The observations do not support the Advocate General's submission that the shortlisting can be done only by fixing the minimum mark. Fixing minimum marks is only one of the possible ways of shortlisting. This is clear from the second sentence of paragraph 17 which begins with the words "For instance". It was not held that fixing minimum marks is the only rational method of shortlisting as suggested by the Advocate General. The submission is also contrary to the observations in paragraph 8 of the judgment of the Supreme Court in State of Punjab v. Manjit Singh which we quoted earlier. Whether a method is rational or not must be determined on the facts of each case.
40. The Advocate General submitted that the GPSC was bound in principle as per its internal Rules of Procedure and even as a matter of law, in principle, to fix a minimum passing mark in the written examination to entitle a candidate to appear for the interview. The GPSC not having done so, the entire procedure was vitiated. He also submitted that this qualifying mark must be fixed beforehand, both on principle and as per the Rules of Procedure of the GPSC.
"12. Appointment of Examination Committee when recruitment is to be done through competitive examination
(3) Where the selection is to be made only on the basis of a written test, the Examination Committee, in consultation with the Chairman, may decide beforehand the qualifying standards for different class or categories of candidates either separately or for a group of such class or categories of candidates, for being eligible to be recommended for the posts.
(4) Where the selection is to be made on the basis of a written test followed by interview, the Examination Committee, in consultation with the Chairman, shall, having regard to the number of vacancies, available, the general level of marks obtained by the candidates belonging to the Backward Classes by categories of candidates for whom posts have been reserved, and the remaining candidates, determine for each such class or categories either separately or for a group of such class of categories of candidates the minimum total marks as qualifying standard for being eligible to be called for interview. The Examination Committee, in consultation with the Chairman, shall similarly also decide the minimum totals of the marks in the written test and the interview as qualifying standards for the different classes or categories of candidates, for being eligible to be recommended for the post."
42. We will first deal with the Advocate General's submission that under Rule 12(4) the determination of minimum total marks for each class or category as qualifying standard for being eligible to be called for the interview must be beforehand. We are unable to agree.
43. Rule 12(3) would not apply in the present case as the selection was not made "only on the basis of the selection test". In the present case, Rule 12(4) would apply. The learned Advocate General had of course contended that the Gazetted Rules contemplated only a written test and not an interview. The GPSC (Rules of Procedure) are not gazetted and, therefore, not applicable. His reference to Rule 12(4) was only in the alternative in the event it is held that an interview was also permissible.
44. The plain language of Rule 12(4) is to the contrary. Firstly, Rule 12(3) expressly requires the examination committee to decide beforehand the qualifying standards. There is no such requirement in Rule 12(4). In fact, the plain language of Rule 12(4) suggests the contrary. The first sentence requires the examination committee to determine the minimum total qualifying mark having regard, inter-alia, to the "marks obtained by the candidates belonging to the backward class categories of candidates for whom posts have been reserved and the remaining candidates". In other words, the minimum total marks as a qualifying standard is to be determined based on the marks "obtained". This can obviously be only after the written examination is held and evaluated. Whether the system is desirable or not is another matter altogether.
45. This brings us to a consideration of the question on principle - as a matter of law. The Advocate General submitted that even in the absence of Rule 12 (3) and (4) it was necessary for a minimum qualifying mark to be stipulated. The submission is that fixing the minimum mark as a qualifying standard for being eligible to be called for an interview beforehand is desirable as a view to the contrary, would compromise merit.
46. The submission is not well founded. The Rules, even the gazetted Rules, do not mandate the GPSC seeking a minimum qualifying mark at the written examination entitling candidates to appear for the interview. Mr. Lotlikar and Mr. Sardessai rightly submitted that in the absence of such a qualification GPSC was, in fact, not entitled to prescribe its own standards for that must be left to the Government.
47. The difference between prescribing minimum qualifications and shortlisting candidates is this. Shortlisting candidates is from among candidates who are qualified. In other words, for the purpose of administrative convenience in certain circumstances such as where there are a large number of qualified candidates, only some are chosen on the basis of the stipulated parameters. Shortlisting is, therefore, from amongst qualified candidates. That is an entirely different exercise from prescribing a qualification. The reliance on behalf of the petitioners upon the following observations in the judgment of the Supreme Court in State of Punjab & ors. v. Manjit Singh & ors. (2003) 11 SCC, 559 is well founded :-
"9. In the present case, the stand of the appellant Commission is that for medical services where the members of service have to deal with the health and life of the people, they must have some minimum standard of efficiency and it is the bounden duty of the Commission to ensure the same. It is perhaps with this view in mind that the Commission fixed 45% minimum qualifying cut-off marks for general category candidates and 40% cut-off marks for Scheduled Caste candidates. We feel, here lies the fallacy in the whole reasoning of the Commission. It is no doubt true that the Commission is an independent and autonomous body and has to work without influence of any authority or the Government. It is rather under duty to act independently. But at the same time the fact cannot be lost sight of that the State Government is competent to lay down the qualifications for different posts, and frame rules for the purpose or take policy decisions which may of course not be against the law. In this context, we may refer to the provisions contained under Article 320 of the Constitution. It reads as under :
It is to be noted that under clause (3), the Union Public Service Commission or the State Public Service Commission, has to be consulted by the Government relating to methods of recruitment in civil services and for civil posts, promotions and transfers as well as about suitability of candidates etc. The consultation may also be in regard to disciplinary matters affecting a person serving under the Government. We then find that clause (4) particularly provides that nothing in clause (3) shall require consultation of the Commission in respect to the manner in which any provision referred to in Article 16(4) may be made or the manner in which the effect may be given to the provisions of Article 335. We may peruse clause (4) of Article 16 and Article 335. They read as follows:
"16.(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.-The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."
Article 16(4) deals with reservations and Article 335 pertains to consideration of reservation consistent with the maintenance of efficiency of the administration. As indicated earlier, clause (4) of Article 320 clearly provides that consultation of the Commission would not be necessary in the matters relating to Articles 16(4) and 335. Therefore, it would be a matter of policy to be decided by the State Government as to what measures, if necessary, may be provided regarding reservations vis-à-vis maintenance of efficiency in services. Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary. No consultation with the Commission, in such matters, is envisaged in view of clause (4) of Article 320 of the Constitution.
11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
"27. When a common entrance examination is held for admission to postgraduate medical courses, it is important that passing marks or minimum qualifying marks are prescribed for the examination. It was, however, contended before us by learned counsel appearing for the State of Madhya Pradesh that there is no need to prescribe any minimum qualifying marks in the common entrance examination. Because all the candidates who appear for the common entrance examination have passed the MBBS Examination which is an essential prerequisite for admission to postgraduate medical courses. PGMEE is merely for screening the eligible candidates.
28. This argument ignores the reasons underlying the need for a common entrance examination for postgraduate medical courses in a State. There may be several universities in a State which conduct MBBS courses. The courses of study may not be uniform. The quality of teaching may not be uniform. The standard of assessment at the MBBS Examination also may not be uniform in the different universities. With the result that in some of the better universities which apply more strict tests for evaluating the performance of students, a higher standard of performance is required for getting the passing marks in the MBBS Examination. Similarly, a higher standard of performance may be required for getting higher marks than in other universities. Some universities may assess the students liberally with the result that the candidates with lesser knowledge may be able to secure passing marks in the MBBS Examination; while it may also be easier for candidates to secure marks at the higher level. A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates who have passed the MBBS Examination from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made. Similarly, candidates who have obtained very high marks in the MBBS Examination where evaluation is liberal, would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick. One must, therefore, also take into account the possibility that some of the candidates who may have passed the MBBS Examination from more "generous" universities, may not qualify at the entrance examination where a better and uniform standard for judging all the candidates from different universities is applied. In the interest of selecting suitable candidates for specialised education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination. This alone will balance the competing equities of having competent students for specialised education and the need to provide for some room for the backward even at the stage of specialised postgraduate education which is one step below the superspecialities.
29. The submission, therefore, that there need not be any qualifying marks prescribed for the common entrance examination has to be rejected. We have, however, to consider whether different qualifying marks can be prescribed for the open merit category of candidates and the reserved category of candidates. Normally passing marks for any examination have to be uniform for all categories of candidates. We are, however, informed that at the stage of admission to the MBBS course, that is to say, the initial course in Medicine, the Medical Council of India has permitted the reserved category candidates to be admitted if they have obtained the qualifying marks of 35% as against the qualifying marks of 45% for the general category candidates. It is, therefore, basically for an expert body like the Medical Council of India to determine whether in the common entrance examination viz. PGMEE, lower qualifying marks can be prescribed for the reserved category of candidates as against the general category of candidates; and if so, how much lower. There cannot, however, be a big disparity in the qualifying marks for the reserved category of candidates and the general category of candidates at the postgraduate level. This level is only one step below the apex level of medical training and education where no reservations are permissible and selections are entirely on merit. At only one step below this level the disparity in qualifying marks, if the expert body permits it, must be minimal. It must be kept at a level where it is possible for the reserved category candidates to come up to a certain level of excellence when they qualify in the speciality of their choice. It is in the public interest that they have this level of excellence.
50. The judgment is distinguishable. The observations relied upon by the Advocate General would not apply to the selection of candidates for the posts under consideration by us. In fact, in State of Punjab v. Manjit Singh, reliance was placed on the decision of an earlier judgment of the Supreme Court in Sadhana Devi (Dr.) v. State of UP (1997) 3 SCC 90, which was, in turn, referred to and relied upon in State of Punjab v. Manjit Singh. The Supreme Court held that the judgment does not apply to a situation such as the one before us The Supreme Court held as under :-
"12. The appellant has also placed reliance upon a decision reported in Sadhna Devi (Dr) v. State of U.P. It, however, deals with an entirely different situation. The matter pertains to the admission to postgraduate course in the medical colleges. An entrance test was prescribed which also prescribed minimum qualifying marks. But so far as the candidates belonging to Scheduled Castes and Scheduled Tribes are concerned, the condition of obtaining the minimum qualifying marks was removed by means of a circular issued by the State Government. The circular of the State Government was challenged by the other candidates, pleading discrimination. It was found that though regulating the selection procedure was within the competence of the State Government but prescribing the eligibility criteria for maintaining proper standards, fell within the competence of the Medical Council of India. In that view of the matter, it was held that the State Government had decided to hold the entrance examination for selection instead of merit of MBBS examination and thus having prescribed the minimum qualifying marks, it was not open to it to do away with that criteria for the reserved category candidates altogether. It was thus found that once a decision was taken to prescribe the minimum qualifying marks, it could not be said by the State Government that there would be none for the reserved category candidates since it was within the competence of the Medical Council of India to have prescribed the criteria for maintaining proper standards. Therefore, the stand of the appellant Commission in this case that, it being an independent body, is not subservient to any authority or the State Government, hence it is competent for it to lay down the minimum efficiency standards including in the matters which may fall within the purview of Article 335 of the Constitution, is erroneous"
51. Admittedly the GPSC had not fixed the minimum qualifying marks to be obtained by the candidates at the written examination to make them eligible to be invited for the interview. Therefore, submitted the Advocate General, even a candidate who scored nil marks was entitled to be called for the interview. If the aggregate marks of such a candidate namely the candidate who scored nil marks at the written examination, are higher than the aggregate marks of other candidates he would be entitled to be recommended for selection / appointment to the said post. This would sacrifice merit altogether. Where a written examination is the criterion or one of the criteria for the appointment especially to a post of this nature it is necessary to fix a minimum qualifying mark. In the absence of the stipulation of a minimum qualifying mark it will be possible for candidates who obtained inadequate marks to be considered for appointment.
52. The apprehension that the absence of a minimum qualifying mark compromises quality in every case is unfounded. The Government has sufficient power to guard itself against the same even if that were the result in a given case. The apprehension is not well founded for the candidates do not get any vested rights to be appointed merely by being included in a select list. As held in State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220, the minimum mark could even be decided subsequently. The Supreme Court held as under :
"11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College1 that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.
12. It was, however, contended by Dr Singhvi on behalf of the respondents that since Rule 8 of Part C makes candidates who obtained 45% or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55% as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who got less than 55% have no right to claim that the selections be made of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C."
The petitioners contended that the GPSC fixed minimum marks to be obtained in the written examination in respect of each of the categories. This, however, was admittedly not so. The petitioners have presumed the marks obtained by the last candidate selected for the interview in each category to be the minimum mark to be obtained in the written examination by the candidates in that category. These candidates were selected only on the basis of the provision in the advertisements which stipulated that the interview would be restricted to a maximum 1:5 in the order of merit based on the performance in the competitive written examination. They were not selected for the interview on the basis of the minimum marks obtained at the written examination. The submission is not well founded. Such a system does not substitute the requirement of a minimum qualifying mark.
The GPSC cannot, therefore, be faulted for not having fixed a minimum qualifying mark entitling candidates to appear for the interview.
55. The Advocate General contended that the advertisement in relation to the said posts were issued in February, 2011 and till date, the selection process has not ended. In fact, the Cabinet decision was taken only on 23rd May, 2012. During this period, a large number of candidates had become eligible to apply for the said posts. There were many more vacancies due to retirements, promotions etc. Fairness required that all those who had subsequently become eligible should also get an opportunity to compete and merit alone should be the test while selecting the candidates.
56. The advertisements were indeed issued in February, 2011. The written examination was conducted on 21st August, 2011. 1545 candidates applied for the said posts. It would obviously take considerable time to correct the papers. GPSC does not have its own teachers / examiners and, therefore, relies upon outsiders who are invited to assess the papers. Such examiners must correct the papers in the office of the GPSC. They are not permitted to take the papers out of the office of the GPSC. The interviews were conducted in February, 2012 i.e. within six months of the written examination. The select list was forwarded by the GPSC on 6th March, 2012 i.e. within six months of the interviews. From December, 2011 to March, 2012, the Code of Conduct was in force. Therefore, appointments, in any event, would not have been made. The impugned Cabinet decision was taken on 23rd May, 2012. The Writ Petition was filed in August, 2012.
The GPSC cannot possibly be criticized for having delayed the process. Given the circumstances, the process was conducted with reasonable despatch.
The starting point, no doubt, was the receipt of all the complaints from the unsuccessful candidates. These complaints undoubtedly got the Government considering not only the veracity of the complaints but the suitability, fairness and desirability if not the correctness of the process itself. The Government did not take the complaints lightly. Nor did it take its decision in a hurry or in a haphazard manner. The Government considered the complaints and applied its mind to the entire process leading to the preparation of the select list.
The endorsements in the files indicate that the Government did not consider either the existing process or the implementation thereof to be sufficient, fair or reasonable. It proposed introducing a new system which in its view would be fair and just and would ensure the appointment of the most deserving and suitable candidates which, in turn, would enure to the benefit of the State and accordingly serve public interest. To this end the Government decided to introduce changes including the fixation of a minimum qualifying mark at the written examination entitling a candidate / applicant to be called for the interview. This, however, was not the only factor that prompted the impugned decision. This is evident from the endorsements made by the Chief Minister on 20th May, 2012.
60. We will shortly refer to the amendment sought to be introduced with retrospective effect by the Goa Civil Service (Eighth Amendment) Rules, 2012. We have not expressed any opinion regarding the applicability of the same to the petitioners case for reasons which we will also state in the end. Suffice it to state that the Government has brought into effect a minimum passing mark, done away with short listing of candidates and introduced video recording of the entire interview. As a policy decision per se, prima facie at least it accounts for a more open system and ensures the selection of more suitable candidates.
As held by the Supreme Court in State of Orissa v. Gopinath Dash, (2005) 13 SCC 495 :
"5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J&K1 and Shri Sitaram Sugar Co. Ltd. v. Union of India2.) The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere.
6. The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government."
61. Mr. Lotlikar and Mr. Sardessai submitted that even assuming that the changes were desirable that could not be the basis for ignoring the select list prepared by the GPSC. They contended that a new policy even if better than the existing one cannot annul a select list.
62. The question is not even whether the proposed changes can be a ground for the Government to refuse to accept the select list in the present case. The Government has not refused to accept the select list in the present case merely because it proposed introducing changes or that the Government proposed changes in the process to ensure a fair system on account of the receipt of the complaints and certain infirmities which according to it existed in the present system as well as in the process involved in the present case.
63. Firstly, it is incorrect to suggest that the Government received only two complaints namely the said letters addressed by the two unsuccessful candidates dated 14/03/2012. It is obvious that several oral complaints were also received by the Government. The two letters were only the written complaints that are produced on record. The endorsement of the Chief Minister on the office note dated 27th April, 2012 refers to "Too many complaints coming from different quarters". The impugned decision dated 23rd May, 2012 also refers to "the large number of complaints" made regarding the irregularities in the selection of the candidates for the said posts. We have no reason to disbelieve the endorsements / notings in this regard.
64. Indeed, the mere receipt of complaints cannot justify the select list being rejected. It is necessary to ascertain whether the complaints were at all considered by the Government. If it is found that the complaints were considered and analyzed the Governments assessment thereof ought not to be interfered with lightly. Even assuming that the Court perceives or assesses the situation differently it ought not to substitute it's assessment for that of the Government.
65. This is not a case where there was no material whatsoever before the Government in order to enable it to take a decision on the complaints. In addition to the complaints, the Government had before it the entire records of the selection process which included the marks allotted to each candidate at the written examination and in the interview. The objective fact is that the applicants who had scored very high marks at the written examination scored relatively poor marks in the interview and the applicants who had scored relatively lower marks in the written examination scored high marks at the interview. As a result thereof, some of the applicants who had scored very high marks in the written test were not selected whereas some of those who had scored lower marks in the written test were selected.
For instance, the candidate from the general category who scored the highest mark of 155.75 in the written examination would have scored less than 22 marks out of 50 at the interview. Another candidate from the general category, who stood third in the written examination with a mark of 150.75 would have scored less than 27 marks out of 50 at the interview. Though the marks of the unsuccessful candidates were not disclosed, these two candidates could have been excluded only if they had obtained less than 22 and 27 marks respectively at the interview. The candidate from the general category, who stood second in the final / select list had scored only 142 marks whereas the candidate who stood first had scored 155.75 marks. We do not suggest that it is impossible for that to have happened.
66. It is indeed not always that a person who scores high marks at the written examination does as well or well in the interview and vice- versa. The importance of an interview can never be undermined. It often helps in appointing the most suitable candidate for the post. It happens ever so often that a candidate who scores lower marks in the written examination is found to be more suitable for a post than the one who scored higher marks at the written examination. This is a subjective fact dependent considerably upon the perception of the interview panel. Thus, the mere fact that a candidate is selected in preference to another although he scored lower marks at the written examination would not indicate any mala fides or impropriety in the selection process.
67. It is, however, not for this Court to analyze these marks or come to a conclusion as to whether there was any abnormality or not. Whether there was a cloud on the process or not is for the Government to decide. It is not necessary for the Government to conclusively determine that the process was fraudulent or even unfair. It is sufficient if there is a reasonable and bona fide suspicion in the matter.
It is for the Government to decide whether in a given case complaints regarding the interview process have any substance. If the Government, after considering all the facts, comes to the conclusion that there is some substance in the grievance or complaint or allegation it is within its right not to accept the recommendation of the GPSC and to order the selection process to be undertaken de novo. This is especially so as the appointment once made to the public office continues for several years.
68. The endorsements made by the Chief Minister indicates that the Government was in fact of the view that if an investigation was conducted, considerable evidence may surface. In the affidavit in reply, the State Government stated that it was seriously considering referring the matter for investigation to the Anti Corruption Branch of the Vigilance Department. At the hearing, the Advocate General stated that the matter had been referred to the Anti Corruption Branch of the Vigilance Department for investigation. In these circumstances, it is impossible to direct the State Government to accept the select list and to make appointments in accordance therewith.
69. It is not necessary for the Government to order an investigating before refusing to accept the recommendation of the GPSC. It is for the Government to decide whether or not to institute a formal investigation. In the event of the Government deciding to investigate the matter it is for the Government to decide upon the nature and extent of the investigation. The Government is entitled to make its own enquiries and to assess the material itself. It is not bound to order an independent investigation in every case before taking a decision whether or not to accept the select list recommended by the Commission.
In East Coast Railway [2010 ALL SCR 1873] (supra), the Supreme Court held as under:
"31. So also whether the competent authority ought to have conducted an enquiry into or verification of the allegations before passing an order of cancellation is a matter that would depend upon the facts and circumstances of each case. It may often depend upon the nature, source and credibility of the material placed before the authority. It may also depend upon whether any such exercise is feasible having regard to the nature of the controversy, the constraints of time, effort and expense. But what is absolutely essential is that the authority making the order is alive to the material on the basis of which it purports to take a decision. It cannot act mechanically or under an impulse, for a writ court judicially reviewing any such order cannot countenance the exercise of power vested in a public authority except after due and proper application of mind. Any other view would amount to condoning a fraud upon such power which the authority exercising the same holds in trust only to be exercised for a legitimate purpose and along settled principles of administrative law."
70. The above facts establish that the State Government was alive to the material. While it was responsive to the grievances and complaints it did not accept them at face value. It studied the system and analyzed the results. It cannot be said therefore that the State Government acted mechanically or under an impulse.
"8. ........................................ At the same time, we may also refer to the decision of the Supreme Court in the case of Dr. H. Mukherjee (supra) as relied upon by Shri Nadkarni. On referring to its earlier judgment in the case of Jatinder Kumar (supra) the Apex Court, inter alia, observed:
(c) There is nothing in that Article or in the rules to suggest that the Government cannot take into consideration the developments subsequent to the selection made by the UPSC. Such a view would not be in public interest and may lead to serious complications if the Government is enjoined to make the appointment notwithstanding certain serious matters having come to its notice subsequent to the recommendation made by the Commission.
(e) Where the Government is satisfied after due inquiry that the selection has been vitiated on account of violation of rules or for the reason that its smacks of corruption, favouritism, nepotism or the like, it may refuse to approve the list in which case it must record the reasons for its action and produce the same in Court, if and when called upon, besides placing the same before the legislature as required by Article 323 of the Constitution."
"51. The State has serious reservations about the efficacy of the selection process. It has also reservation in regard to the mode and manner in which a decision was taken to increase the cadre strength. An inflated cadre strength will have direct repercussions not only in the matter of good governance but also the public exchequer. The State while exercising its power to review the cadre strength is entitled to take note of the entirety of the situation including the question as to whether the quantum of work has gone up or the activities of the State have increased warranting upward revision in the cadre strength. When a Review Committee is constituted under a statute, it has to act strictly in terms thereof. It must act within its four corners. Determination of cadre strength on the basis of the representation made by the Association or exercise of suo motu power by the Chief Minister without any material having been brought before him for the purpose of increase in the cadre strength must be deprecated in strongest terms.
52. The High Court, for good and sufficient reasons, was of the opinion that the State had acted bona fide in issuing the said Notification dated 13-5- 2005. There cannot be any doubt whatsoever that the State in absence of any other factor was obligated to make appointments keeping in view the reduced cadre strength. Selection process has several stages. The Commission holds a constitutional duty to see that the entire selection process is carried out strictly in accordance with law fairly, impartially and independently. The selectors appointed by the Commission or its Chairman and members are forbidden to take recourse to favouritism. Showing of any favour to any candidate on an irrelevant or extraneous consideration would be contrary to the constitutional norms of equality envisaged under Articles 14 and 16 of the Constitution of India. Fear or favour on the part of the Commission cannot but (sic) be condoned.
53. In this batch of appeals, we are not concerned with the questions which have been raised by the State of Haryana in its counter-affidavit in regard to the acts of omission and commission on the part of the Commission but there cannot be any doubt whatsoever that there existed a cloud which is required to be cleared. Unsuccessful candidates have levelled serious allegations against the members of the Commission. They may or may not be correct. The Vigilance Bureau has initiated an inquiry into the whole matter. Such an inquiry should, in our considered opinion, be allowed to be continued unless the State in terms of the report made by the Vigilance Bureau and upon making an inquiry of its own satisfies itself that the selection process was not tainted. Its disinclination to make an appointment till then cannot be found fault with. It is not a case where in view of the provisions of Act 4 of 2002 as also the 1930 Rules, any piecemeal appointment can be made. The examination is a combined examination. It is an integrated process. Selection of candidates whether in the Civil Services or Allied Services would depend upon the performance of the candidates. Preference in the posts is required to be adjusted on the basis of such performance. All appointments, therefore, are interlinked. Furthermore, no appointment can be made beyond the posts advertised for. (See Ashok Kumar v. Chairman, Banking Service Recruitment Board15.)
63. The fact that in some jurisdictions, doctrine of unreasonableness is giving way to doctrine of proportionality is beyond any dispute. (See Indian Airlines Ltd. v. Prabha D. Kanan and State of U.P. v. Sheo Shanker Lal Srivastava.) But, the development of law in this field could have been applied only if a case was made out. If the State is right in its contention that the selection process being under a cloud, no appointment can be made, the court by invoking any doctrine cannot ask the State to do so unless it arrives at a positive and definite finding that the State's stand is fraught with arbitrariness. We do not find any arbitrariness in its act.
64. It may be true that before the High Court the contention raised by the State was not in regard to the pendency of the vigilance inquiry but lack of vacancy, but it must also be noticed that the High Court itself despite perusing the records maintained by the State has clearly arrived at a finding that the inquiry by the State Vigilance Bureau had already been ordered, it cannot be ignored. The High Court in fact proposed to adjourn the matter sine die till the inquiry was completed, but the same was not acceptable to the appellants.
65. Moreover, while embarking on a question of this nature, this Court must take an overview of the entire scenario. It need not keep itself confined to the stand of the State before the High Court alone. Even in a case where the process of selection gives rise to a doubt in regard to the fairness on the part of the selecting authorities, there need not be any categorical finding that the selection process is vitiated. Such a question may have to be posed and answered in an appropriate case." [emphasis supplied]
74. It is impossible to hold that the State's stand is "fraught with arbitrariness". It is not necessary for the Government pursuant to an investigation or even on its own to come to a conclusive finding of fraud favouritism or any other defect in the process of selection. It is sufficient if the Government bona fide comes to the conclusion that there is a reasonable doubt about the process. Otherwise, it would be difficult in certain cases such as where appointments are required to be made urgently and cannot await the outcome of investigation for the Government to function. Appointments to such posts may, in certain cases, be indefinitely delayed pending a formal investigation by an independent agency or by the Government itself. The Government is the best judge as to whether it is possible or feasible to await the outcome of an investigation or not.
75. Mr. Sardessai relied upon the judgment of the Supreme Court in East Coasts Railway v. Mahadev Appa Rao, 2010 (7) SCC 278 : [2010 ALL SCR 1873] in which the appellants issued a notification to conduct tests for filling up vacant posts. The unsuccessful candidates complained about the manner in which the test was conducted and the successful candidates filed proceedings before the CAT for a direction to the respondents to proceed with the selection. The Divisional Manager cancelled the test and issued a notification announcing a fresh test to be held. During the pendency of the proceedings, liberty was granted by the CAT to hold a fresh test. The question before the Supreme Court was whether the selection should be finalized on the basis of the test held earlier or the matter be allowed to be re-examined by the authority in the context of the representation received by them. The Supreme Court held that if upon due and proper consideration of the representation received from the candidates who were unsuccessful in the first examination, the competent authority came to the conclusion that the test earlier held suffered from any infirmity or did not give a fair opportunity to all the candidates, it shall be free to pass a fresh order cancelling the said examination after recording such a finding in which event the second test conducted under the directions of the Tribunal would become the basis for the selection process to be finalized in accordance with law. It was further clarified that if the authority came to the conclusion that the earlier test suffered from no procedural or other infirmity or did not cause any prejudice to any candidate, the second test / examination shall stand cancelled and the process of selection should be finalized on the basis of the test held earlier.
The judgment is of no assistance to the petitioners for the impugned decision therein was "unsupported by any reasons whatsoever". Moreover, no reasons for the cancellation of the test were recorded even on the files contemporaneously maintained. This is clear from the following observations of the Supreme Court:-
"24. In the instant case the order passed by the competent authority does not state any reasons whatsoever for the cancellation of the typing test. It is nobody's case that any such reasons were set out even in any contemporaneous record or file. In the absence of reasons in support of the order it is difficult to assume that the authority had properly applied its mind before passing the order cancelling the test.
28. That is not, however, the position in the instant case. The order of cancellation passed by the competent authority was not preceded even by a prima facie satisfaction about the correctness of the allegations made by the unsuccessful candidates leave alone an inquiry into the same. The minimum that was expected of the authority was a due and proper application of mind to the allegations made before it and formulation and recording of reasons in support of the view that the competent authority was taking." [emphasis supplied]
In the case before us reasons have been disclosed at every stage. We have referred to the same while narrating the facts.
76. Having said all that we already have about the reasonableness of the Government's assessment and perception about the complaints, a dismissal of the Writ Petition would be warranted. This would be especially so in view of the judgment of the Supreme Court in Jitendra Kumar vs. State of Haryana (Supra) (2008) 2 SCC 261, where the Supreme Court held that if there is a cloud in the selection process, no appointment can be made and the Court cannot compel the State to do so unless it arrives at a positive and definite finding that the State's stand is fraught with arbitrariness and in view of our not having found the State's stand to be fraught with arbitrariness. We however, wish to leave no room for grievance and as a little room for doubt as is possible in such cases. The Government has in fact ordered an investigation into the matter by the Anti Corruption Branch of the Vigilance Department. Having done so, we presume that the Government would itself reconsider its decision if necessary based on the report. The Government is not bound to accept the report. If however for instance, the report indicates positively that there was no unfairness or mal-practice and the Government accepts the report, it may well be inclined to reconsider its decision.
For this reason alone, instead of dismissing the Writ Petition, we think it both, prudent and fair, to direct the Government to take a fresh decision after considering the report of the Anti Corruption Branch of the Vigilance Department.
77. We appreciate that the Goa Civil Services 8th Amendment Rules, 2012 have come into force. We will refer to them shortly. If however, the Government is inclined to reconsider its decision in all respects, it can always take the necessary steps for repealing the Rules or making them operate only prospectively if it so desires. This however, is entirely a matter for the Government to decide.
78. Even assuming that there is any injustice caused to the candidates who have been selected by the Government in refusing to accept the recommendation of the GPSC we are afraid it would not be open to us to set aside the said decision. In that event we would have on the one hand the private interest of candidates such as the petitioners and on the other hand public interest. The latter must prevail. As held by Supreme Court in Shrijee Sales Corporation v. Union of India, 1997(3) SCC 398 public interest is a superior equity which can override individual equity.
79. During the course of the hearing of this matter the Advocate General tendered the Goa Civil Service "Eighth Amendment" Rules, 2012 made in exercise of powers under Article 309 of the Constitution of India by the Government of Goa in consultation with the GPSC, as conveyed by a letter dated 18th October, 2012. Rule 1 (2) stipulates that the same shall be deemed to come into force with effect from 19th February, 2010. Rule 2 amended Rule 7 of the Goa Civil Service Rule, 1997. The amendment provides that the passing percentage for any written examination shall be 65% marks; that there shall be no short listing of the candidates for the oral interview and all candidates who secure 65% marks and above at the written examination shall be called for the oral interview and that the oral interviews shall be conducted under C.C.TV surveillance or videography and proceedings thereof shall also be video-recorded and such record shall form a permanent record of the commission. The learned Advocate General submitted that these rules have retrospective effect. They, therefore, affect the alleged rights of the petitioners in the present Writ Petitions.
80. If the rules are valid, they would indeed affect the rights of the petitioners. However, as these rules were tendered after the Writ Petitions had been substantially heard we permitted the counsel to complete their arguments. We made it clear that any judgment would obviously be subject to the rights and contentions of the parties qua the amended rules. In other words, we informed that even if we allowed these Writ Petitions it would not affect the rights of the Government to decide the further course of action based on the said rules and the petitioners would at liberty to challenge the rules as well as any such action pursuant thereto or based thereon. However, considering the conclusion we have come to, in any event it is not necessary for us to decide the validity or effect of the amendments. Suffice it to note that prima facie at least, these rules did not appear to have been amended with retrospective effect to interfere with the hearing of these Writ Petitions. From the noting of the Chief Minister reproduced by us it is clear that the Government had already decided to amend the rules. The hearing of the Writ Petitions was if at all only the catalyst for the amended rules to be brought into effect. Indeed the endorsement expressly refers to a "new system" which further refers to the new system having one examination and only candidates qualifying above the particular marks being called for the interview.
81. In these circumstances, the Writ Petitions are disposed off by directing respondent No.1 to reconsider the decision dated 23rd May, 2012 and to take a fresh decision after the receipt of the report of the Anti Corruption Branch, Vigilance Department. It is clarified that in the meantime the select list shall not be deemed to have been approved by the Government or by virtue of this order.
There shall be no order as to costs.