Dismissed

Madhuchhanda Sahoo v. Odisha State Health and Family Welfare Society, Bbsr

Orissa HC11 Sept 2024WP(C)/14936/2023

Case brief

AI extract

What is this about?

The petitioners challenged the selection process for a technical post, alleging procedural flaws, lack of specific marking rules, and the non-availability of individual award rolls. The court held that participants cannot approbate and reprobate the process after failing to object earlier. The absence of uploaded rolls, in the absence of a prescribed time-limit, did not vitiate the final signed list. The court found the claim of unspecified minimum marks incorrect, as the advertisement stipulated a 50% cutoff. Allegations of mala fides were dismissed due to lack of impleaded respondents. The writ petition was dismissed.

What did the court decide?

The writ petition stands dismissed. No order as to costs.

Madhuchhanda Sahoo Vs Odisha State… — Constitutional and Fundamental Rights | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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W.P.(C) No.14936 of 2023

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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1. Madhuchhanda Sahoo Aged about 32 years Wife of Pradipta Kumar Sahoo Plot No.267, Barahari Khandagiri, Bhubaneswar District: Khordha – 751 030.

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2. Anushree P Mishra Aged about 30 years Daughter of Bibekananda Mishra Flat No.304, Aaioua Enclave, Nuasahi Nayapalli, Bhubaneswar District: Khordha – 751 012.

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3. Dr. Maheswata Das Aged about 36 years Daughter of Anil Kumar Mudulli Plot No.1064/2790, Pragati Nagar Unit-8, Bhubaneswar District: Khordha – 751 003.

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4. Ranjan Kumar Mohanty Aged about 29 years Son of Premananda Mohanty Ramachandrapur, Bartia, via : Rahama District: Kendrapara – 754 140.

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5. Tasneem Firdaus BTR Aged about 27 years Daughter of Sayed Tafizul Rahaman Principal Quarter, JNV Nalagarh

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W.P.(C) No.14936 of 2023

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Nabaghanpur District: Nayagarh – 752 070.

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6. Rashmiprava Pal Aged about 28 years Daughter of Rabindranath Pal At: Balarampur, P.O.: Ghadiamal P.S.: Rajanagar District: Kendrapara – 754 248.

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7. Sudhansubala Lenka Aged about 26 years Daughter of Dr. Balaram Lenka At: Badabaranga, P.O.: Sri Baladevjiew District: Kendrapara – 754 212.

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8. Pruthwiraj Tarai Aged about 24 years Son of Krushna Chandra Tarai Plot No.1692, At: Palla In front of new RTO Khordha – 752 055 … Petitioners. -VERSUS-

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1. Odisha State Health and Family Welfare Society Government of Odisha Department of Health and Family Welfare, represented through Principal Secretary Annex Building of SIH and FW Nayapali, Unit-8 Bhubaneswar – 751 012 District: Khordha. 2. Mission Director National Health Mission and Member-Secretary Odisha State Health and Family Welfare Society, Odisha

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Annex Building of SIH and FW Nayapali, Unit-8 Bhubaneswar – 751 012 District: Khordha.

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3. Swatishree Pany Aged about 33 years Daughter of Jayadev Pany Plot No.1116/2701, Soubhagaya Nagar Delta Square, Bhubaneswar – 751 007 District: Khordha.

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4. Sangeet Sagar Sahoo Aged about 27 years Son of Kailash Kumar Sahoo At/P.O.: Nuapatna, District: Cuttack.

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5. Manisha Parida Aged about 25 years Daughter of Sri Upendranath Parida At/P.O.: Baramundali District: Jagatsinghpur – 754 119.

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6. Abhipsa Patra Aged about 28 years Daughter of Bijaya Kumar Patra At/P.O.: Jakeikela, Bonaigarh District: Sundargarh – 770 038.

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7. Kshanaprava Jena Aged about 25 years Daughter of Prasanta Jena At: Medinipur, P.O.: Olipur, Via : Haladipada District: Balasore – 756 027.

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8. Lipika Khatua Aged about 25 years Daughter of Bibekananda Khatua At: Debario, P.O.: Gokan, P.S.: Mahanga District: Cuttack – 754 206. … Opposite Parties.

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Counsel appeared for the parties:

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For the Petitioners

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: M/s. Dr. Jitendra Kumar Lenka, Pratap Kumar Behera and Laxmikanta Tripathy, Advocates

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For the Opposite party No.1 For the Opposite party No.2 For the Opposite party Nos.3 to 8

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: Ms. Saswata Patnaik, Additional Government Advocate

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: M/s. Bibhu Prasad Tripathy and

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Narayan Barik, Advocates

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: M/s. Susanta Kumar Dash, Ananga Kumar Otta, Swetlana Das, Prabin Das and Pragyant Harichandan, Advocates

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P R E S E N T:

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HONOURABLE

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MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 29.07.2024 :: Date of Judgment : 11.09.2024

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JUDGMENT

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The eight numbers petitioners claiming to have qualification of M.Sc. in Microbiology/Applied Microbiology discipline, filed the writ petition challenging selection of the opposite party Nos.3 to 8 for the post of Microbiologist pursuant to Advertisement No. 02 of 2023 (Annexure-3), dated 28.02.2023 issued by the Mission Director, National Health Mission, the opposite party No.2, with the following prayer(s):

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“The petitioner therefore, most humbly prays that Your Lordship would be graciously pleased to issue rule Nisi calling upon the opposite parties to show cause as to why

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the entire selection to the post of Microbiologist pursuant to Advertisement No.2 of 2023 dated 28.02.2023 at Annexure-3 shall not be quashed.

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And further pleased to quash the Advertisement at Annexure-3 dated 28.02.2023 in not giving any marks by the selection committee for academic performance and direct the opposite party No.2 to issue fresh advertisement by giving weightage/marks to academic performance in addition to marks in the Walk-in-Interview.

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And issue any other writ/writs or direction/ directions as would be necessary in the interest of justice;

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And if the Opposite Parties fail to show cause or sufficient cause, the rule be made absolute.

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And for this act of kindness, the Petitioner shall as in duty bound ever pray.”

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Facts:

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2. Facts, as adumbrated by the writ petitioners, reveal that having secured more than 50% marks in the M.Sc. (Microbiology/Applied Microbiology) with postqualification experience in Clinical Laboratory Services for more than one year, appeared in the walk-ininterview.

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2.1. Conditions inter alia in the Advertisement No.2 of 2023 dated 28.02.2023 (“Advertisement”, for short) provided that the candidates securing 50% and more marks in the Final Panel Merit List would be kept in the Panel with the validity of one year from the date of approval

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and the result of walk-in-interview would be published in the official website of the National Health Mission.

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2.2. It is alleged by the petitioners that no detailed selection criteria have been specified with allocation of marks towards interview and career assessment. It is the grievance of the petitioners that there was lack of transparency and it is at the time when certain candidates were called for verification of documents, they could come to know that the results were not published in the webportal.

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2.3. It is affirmed by the petitioners at paragraph 13 of the writ petition as follows:

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“That, without publishing the result of walk-in-interview and how much total marks fixed in the interview etc. intimation to the candidates for verification of certificates for appointment to the post of Microbiologist is illegal, arbitrary and as such the entire selection is vitiated and as such the same is liable to be quashed. As on today (08.05.2023) till 1 P.M. the result of the Microbiologist pursuant to Advertisement No. 2 of 2023 dated 28.02.2023 has not been uploaded in the website of NHM.”

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2.4. It is further asserted at paragraph 16 of the writ petition that,

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“Even though, the petitioners are more meritorious and have done well in the interview, they were not issued verification letter as has been given to one Sangeet Sagar

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Sahoo for the post of Microbiologist pursuant to Advertisement No.2 of 2023. The Petitioners apprehend that the authority without publishing the result and calling the members of the selection board to change the mark in the interview so that candidates according to their choice will get appointment which is illegal and as such the entire selection and consequential appointment is liable to be quashed.”

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2.5. With the above backdrop of facts the petitioners being apprehensive of mala fides in the process of selection approached this Court by way of filing the instant writ petition.

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Counter affidavit of the opposite party No.2:

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3. The averments of the petitioners have been strongly opposed by the opposite party No.2 by filing counteraffidavit. It not only refuted allegation of mala fides but also asserted that transparency in the process of selection was adhered to. It is contended that the writ petition is sheer abuse of judicial process.

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3.1. Explaining the method adopted for selection process in the walk-in-interview, the opposite party No.2 submitted that the position of Microbiologist is an essential position in National Health Mission under Odisha State Health & Family Wealfare Society, Government of Odisha in Department of Health and Family Welfare (for brevity, “NHM”), as they are supposed to provide technical support to the District Public Health Laboratories being

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strengthened under Integrated Disease Surveillance Programme. It also provides facilitation for lower level laboratories ensuring that laboratory investigations are promptly undertaken when diseases of public health concerns are reported/suspected. During pandemic (COVID-19) the State established viral diagnostic laboratories in each and every district with Real-Time Reverse Transcription-Polymerase Chain (RT-PCR) and installed other high end equipments. To make the viral diagnostic laboratory effectively function, the filling up of post of Microbiologist has become highly essential. Besides COVID-19 test, other viral diagnosis, like detection of Influenza Virus (Swine Flu), Dengue, Scrub Typhus, Leptospirosis, Anthrax etc ., are being carried out in the RT-PCR laboratories. Currently under the Prime Minister-Ayushman Bharat Health Infrastructure Mission (PM-ABHIM) Scheme, Block Public Health Laboratories and Integrated Public Health Laboratories are proposed to be established at each Block level as well as the District level. So the role of Microbiologist is to monitor, supervise and impart the hand-holding support to the lower level laboratories along with the validation of the test and to undertake quality assurance activities. Thus, the filling up of the vacant position of Microbiologist is highly essential during the present post-pandemic period.

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3.2. It has further been submitted that for the recruitment of contractual position in NHM at State level, the eligibility criteria for the said position is considered and recommended by a Committee of Experts as per the requirement of the said position. The recommendation of the said Committee is placed before the Mission Director for approval. After obtaining the approval of present deponent, the Advertisement for filling up of the vacant position is published. For the purpose of undertaking walk-in-interview, a Scrutiny Committee is constituted for verification of certificates of the candidates registering their names for the said interview. After certificate verification of the candidates by the Scrutiny Committee, the eligible candidates appear for the interview and the candidates who have secured 50% and more marks in the Final Panel Merit List are kept in the Panel which would remain valid for one year from the date of approval by the present opposite party. From amongst the said list, the candidates from the top of the merit list against the number of vacancies as per requirement are called for document verification. After such document verification the result of the walk-ininterview is published and simultaneously offer letters are issued to the selected candidates.

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3.3. In the instant case, eligibility criteria inter alia for Microbiologist was recommended by a Committee of

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Experts. The meeting of the said Committee was held on 21.10.2022 at Mission Directorate, NHM. The recommendation of the Committee on the eligibility criteria for the post of Microbiologist along with other posts was approved by the present opposite party.

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3.4. With such finalized eligibility criteria and selection procedure, advertisement for recruitment was published vide Advertisement No. 02 of 2023, dated 28.02.2023 for conducting walk-in-interview for the contractual engagement of different posts including the post of Microbiologist. For the post of Microbiologist, the date of Registration and conduct of walk-in-interview was fixed to 17.03.2023.

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3.5. The eligibility criteria qua Microbiologist has been fixed as follows:

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Sl.	Name	Upper	No.	Remuneration	Date of	Eligibility criteria
No .	of the post	age limit as on dated 01.02 .2023	of vac- ancy (ies)	(in Rs.) performance incentive (P.I) and other allowances as admissible	registr- ation/ interv- iew
03 .	Micro bilogi- st	Up to 67 years for MBBS Doct-	40	Rs.45,875/- + PI	17.03.2 023	Qualification: The candidate must have passed MBBS Degree along with Post Graduate Degree / Diploma in Microbiology or Virology or Pathology or

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ors other laboratory sciences and from an Institution Up to recognized by National 45 Medical Commission years (NMC). S/he must have for valid registration from the othOdisha Council of Medical ers Registration. OR Qualification: The candidate must have passed MBBS Degree from an Institution recognized by National Medical Commission (NMC). S/he must have valid registration from the Odisha Council of Medical Registration. Experience: S/he must have 01 year of lab experience in diagnostic services for Epidemic Prone Diseases. OR Qualification: The candidate must have passed M.Sc. in Medical Microbiology from a recognized University/ Institution Experience: S/he must have 01 year of post qualification experience in Clinical Laboratory Services.

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OR
Qualification:
The candidate must have
passed M.Sc. in
Microbiology from a
recognized University/
Institution.
Experience:
S/he must have 01 year of
post qualification
experience in Clinical
Laboratory Services.

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3.6. The candidate, fulfilling such eligibility criteria, was to

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face the walk-in-interview. In the selection criteria there was no provision of awarding marks on the basis of career assessment. The marks secured by the candidate in the interview are taken into consideration since the method of selection is “walk-in-interview”. For the position of Microbiologist, 233 numbers of candidates registered their names, whose certificates were verified by the Scrutiny Committee constituted for the purpose. Out of the eligible candidates, 139 candidates appeared interview before the Interview Board on 17.03.2023 and also on 18.03.2023, as was extended for one more day in view of Clause-I of the General information and Instructions appended to the Advertisement, which reads thus:

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“Candidates fulfilling the eligibility criteria may appear for registration in between 10.00 AM to 12 Noon and

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consequently for interview if eligible, on the date as mentioned against the post. No registration will be allowed in any case after scheduled date and time of registration. After short listing basing on the required eligibility criteria, the candidates will be required to stay back for interview. If the number of candidates registered and shortlisted will be high, then the interview will be continued for other date/s, which will be notified to the candidates on the date of registration.”

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3.7. As there were good numbers of candidates, the interview could not be completed on one day and the same got extended to one day more. As per the selection criteria as mentioned in the advertisement, the candidates who secured 50% and more marks were required to be kept in the Final Panel Merit List with validation of one year from the date of its approval.

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3.8. In the Advertisement, the number of vacancy position of the Microbiologist was published as 40. As per requirement, 40 numbers of candidates from the top order of the merit list, i.e., from Serial Nos. 1 to 40 were invited for document verification on 08.05.2023 and 09.05.2023. Out of such 40 number of candidates, 39 candidates could appear for document verification within the specified period and were found eligible for being issued offer letters to join as Microbiologist.

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3.9. Against the remaining one number of vacancy, which was required to be filled up as per publication made, the

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candidate placed at the next serial number, i.e ., Sl. No. 41 as per the merit list, was to be called for document verification and the same process would have continued until the required vacancies are filled up. After document verification and finding required number of eligible selected candidates, the select merit list of such 40 candidates was going to be published in the official website of NHM, Odisha for intimation of general public and simultaneously offer letters were to be issued to such candidates for joining in the said post.

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3.10. However, on 11.05.2023 this Court in the instant writ petition directed to maintain status quo as a result of which the publication of result in the webportal could not be made. But after appearance before this Court on subsequent date on being issued with notice in the matter, this Court was pleased to modify the interim order on 18.05.2023 and directed that “8 posts of Microbiologists pursuant to Advertisement No.02 of 2023 dated 28.02.2023 at Annexure-3 shall not be filled up till the next date. Further it is made clear that any appointment be made pursuant to Advertisement No.02 of 2023, dated 28.02.2023 at Annexure-3 shall be subject to final outcome of the present writ application.”

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Hearing:

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4. Since this Court directed for maintaining status quo by virtue of the interim Order dated 11.05.2023 in consideration of I.A. No.6896 of 2023 filed in the instant writ petition, the appointment to the post of Microbiologist pursuant to Advertisement No.02 of 2023 dated 28.02.2023 could not be made possible. On consent of the counsel for the parties, the present matter is taken up for final disposal at the stage of admission.

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4.1. Accordingly, this Court heard Dr. Jitendra Kumar Lenka, Advocate assisted by Sri Laxmikanta Tripathy, Advocate; Ms. Saswata Patnaik, learned Additional Government Advocate; Sri Bibhu Prasad Tripathy, learned Advocate for the opposite party No.2; and Sri Susanta Kumar Dash, learned Advocate assisted by Sri Prabin Das, learned Advocate for the opposite party Nos.3 to 8. Hearing being concluded on 29.07.2024, the matter stood reserved for preparation and delivery of Judgment/Order.

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Rival contentions and submissions:

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5. Dr. Jitendra Kumar Lenka, learned Advocate appearing for the petitioner submitted that in the Advertisement intending to conduct walk-in-interview, did not provide criteria for selection for the post of Microbiologist and no qualifying marks were allocated for interview and career assessment. Harping on Clause-X of the Advertisement

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it has been submitted that the candidates securing 50% marks and more in Final Panel Merit List would be kept in the panel with validity of one year. Stemming on the decision rendered in Ramesh Kumar Vrs. High Court of Delhi, (2010) 3 SCC 104 = (2010) 2 SCR 256, Dr. Jitendra Kumar Lenka, learned Advocate vehemently contended that in absence of details being provided in the said Advertisement (Annexure-3), the selection for the post of Microbiologist based on 50% marks and more secured in the interview alone is illegal.

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5.1. Laying emphasis on Clause-XIII of the Advertisement specifying “The result of walk-in-interview will be published in the official website of NHM”, he contested the decision of selection of candidates in the said interview and submitted that non-publication of the result of such interview and issuing intimation to the candidates for verification of certificates for appointment on the post of Microbiologist would lead to conceive that the action of the opposite party No.2 is not only tainted with mala fides but also arbitrary.

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5.2. Praying to quash the appointment as a result of walk-ininterview conducted in response to the Advertisement Dr. Jitendra Kumar Lenka, learned Advocate submitted that the Authority without publishing the result and calling the members of the Selection Board to change the marks in the interview so that candidates according to

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their choice could get appointment on extraneous consideration is not only illegal but also renders the entire selection and consequential appointment invalid and as such, the selection is liable to be quashed.

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6. Sri Bibhu Prasad Tripathy, learned Advocate for the opposite party No.2 has submitted with all humility that transparency at all levels of selection process has been maintained. The writ petitioners have been apprehensive of the mala fides in selecting favoured candidates and they have not discharged their onus in establishing attack on the Selection Committee as well as the opposite party No.2. It is trite that alleging mala fides though easy, but to lay proof is difficult. It is urged that as the appropriate authorities in their personal capacities are not arraigned as parties to the present proceeding, this Court may require to desist from entertaining the writ petition.

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6.1. He submitted that in the counter-affidavit the opposite party No.2 has explained the procedure followed in selecting eligible candidates having merit for the post of Microbiologist.

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6.2. As regards non-publication of result of the walk-ininterview, referring to arguments advanced by Dr. Jitendra Kumar Lenka, learned Advocate as reflected in the Order dated 27.06.2024 in the instant writ petition

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by this Court that “though specific averment has been made in paragraph 13 of the writ petition that results were not published as on the date of filing of this writ petition, i.e., 08.05.2023 till 1.00 PM, there is no response from the side of the opposite party No.2 even though counter-affidavit was filed on 16.05.2023”, Sri Bibhu Prasad Tripathy, learned advocate for the opposite party No.2 has drawn the attention during the course of hearing to the affidavit dated 10.07.2024. He submitted that as per Clause-XIII of the General Information and Instructions appended to the Advertisement after verification of documents and finding of required numbers of eligible selected candidates, on 25.05.2023 results have been hosted in the web-portal after modification of interim Order on 18.05.2023. No timelimit was prescribed in the Advertisement for publication of results and such publication has been made after modification of interim order with respect to 32 candidates reserving 8 candidates. The recruitment for the post of Microbiologist being conducted in fair, transparent and just manner following the guidelines as set out in the Meeting dated 21.10.2022. For the said reason as alleged by the petitioners, the entire process of selection could not be said to be vitiated in absence of any material as to mala fides .

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7. Ms. Saswata Patnaik, learned Additional Government Advocate for the opposite party No.1 and Sri Susanta Kumar Dash, learned Advocate for the opposite party Nos.3 to 8 supported the arguments put forth by Sri Bibhu Prasad Tripathy, learned Advocate for the opposite party No.2. All the counsel argued for vacation of interim Order of status quo and pressed for dismissal of the writ petition, as more than a year has already been elapsed since publication of the results of 32 successful candidates.

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Analysis and discussion:

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8. This Court at the outset would wish to make the observation that the petitioners have made scurrilous attack of on the opposite party No.2 and the Selection Committee on the ground of mala fides , which is apparent from the contents of rejoinder affidavit. The rejoinder affidavit filed by the petitioners containing such allegation is quoted hereunder:

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“That, as per Advertisement at Annexure-3 Clause-XIII it has been clearly mentioned the result of the walk-in interview will be published in the Official Website. Without publishing the same calling the candidates for certificate verification for appointment proves that selection was made illegally on extraneous consideration and as such the same quashed.”

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8.1. Clause-XIII in the Advertisement stands thus:

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“The result of the walk-in-interview will be published in the official website of NHM.”

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8.2. It has been explained by way of Additional Affidavit dated 10.07.2024 that,

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“4. *** as per the selection criteria as mentioned in Clause-X of the General information and Instructions of the Advertisement, the candidates who have secured 50% and more marks as per the selection procedure, have been kept in the Panel Merit List with validation of one year from the date of approval of such merit list. The number of vacancy position of the said post had been advertised as 40 and accordingly as per requirement, 40 numbers of candidates from the top of the merit list from Serial No. 1 to 40 were called for document verification on 08.05.2023 and 09.05.2023. The said list of 40 candidates for appearing document verification was placed in the Notice Board of Mission Directorate, NHM. Out of such 40 number of candidates, 39 candidates have appeared for document verification within the stipulated period and have been found eligible for being issued offer letters to join in the said post. Against the remaining one (l) number of vacancy required to be filled up, as per provision, the candidate placed at next serial number, i.e., Sl. No. 41 as per the merit list is to be called for document verification and the same process shall be continued until the required vacancies are filled up. Further, as per Clause-XIII of the General information and Instructions of the Advertisement, after document verification and finding of required number of fully eligible selected candidates, the select merit list of such 40 candidates is to be published in the official

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website of NHM, Odisha for intimation of general public and simultaneously offer letters are to be issued to such candidates for joining in the said post.

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5. However, in the meantime, Hon‟ble High Court vide Order dated 11.05.2023 in W.P.(C) No. 14936 of 2023 has directed to maintain status quo with regard to appointment to the post of Microbiologist pursuant to advertisement No.2 of 2023 dated 28.02.2023 at Annexure-3. Accordingly, status quo on the process of recruitment for the post of Microbiologist was maintained at the level of document verification of selected candidates against required vacancy.

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On 18.05.2023, the Hon‟ble High Court has modified the Order and passed following order:

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„***

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4. Considering such submission, interim order dated 11.05.2023 is modified to the extent that 8 posts of Microbiologist pursuant to advertisement No. 2 of 2023 dated 28.02.2023 at Annexure-3 shall not be filed up till the next date. Further, it is made clear that any appointment be made pursuant to Advertisement No.2 of 2023 dated 28.02.2023 at Annexure-3 shall also be subject to the final outcome of the present writ application.

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5. This Court expects that the appointment as Advertisement No.2 of 2023 dated 28.02.2023 at Annexure-3 shall be made strictly in terms of the schemes.‟

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That after the Order dated 18.05.2023 of the Hon’ble High Court the office of the Mission Director, NHM has kept said 8 posts of Microbiologist vacant and since, Clause-XIII of the General Information and Instructions of the Advertisement states that the result of Walk-inInterview will be published in the official website of NHM, accordingly, the results of 32 candidates for the remaining 32 posts have been published on 25.05.2023 in the official website of NHM. The selected candidates have been given offer letters to join in the said posts as per the above mentioned Order dated 18.05.2023 of the Hon‟ble Court. The recruitment for the post of Microbiologist is being conducted in fair, transparent and just manner following the rules and norms of the OSH & FW Society.”

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8.3. The note-sheet dated 25.05.2023 at Annexure-B/2 as enclosed to aforesaid Affidavit dated 10.07.2024 depicts as follows:

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“This is regarding publication of result of Microbiologist (Advertisement No.02/2023. The list of selected candidates is placed at page No.378-377/c for kind perusal. The same may be published in the official website of NHM, Odisha.

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If approved, notes as above, the file may kindly be endorsed to IT section for further action at their end.”

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8.4. Under the aforesaid precinct, the results of the walk-ininterview being published, this Court does not perceive

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any mala fide or showing favouritism on the part of the opposite party No.2.

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8.5. Where an allegation of mala fides is raised, heavy burden of establishing existence of such mala fides is on the person who alleges it. It is easy to make allegations of mala fides but equally difficult to prove the same. [ First Land Acquisition Collector Vrs. Nirodhi Prakash Gangoli, (2002) 4 SCC 160; Jasvinder Singh Vrs. State of J&K, (2003) 2 SCC 132 ]. The factual details enumerated by the opposite parties do not go suggest that selection of particular candidate has been made for hostile discrimination on account of existence of personal bias or mala fides .

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8.6. It is well settled by catena of judgments of the Supreme Court of India, namely in E.P. Royappa Vrs. State of T.N., (1974) 4 SCC 3 , the Constitution Bench has made it unequivocal as under:

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“92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and

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unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up— these considerations are wholly irrelevant in judicial approach— but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.”

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8.7. The Supreme Court, in Sukhwinder Pal Bipan Kumar Vrs. State of Punjab, AIR 1982 SC 65; and Shivajirao Nilangekar Patil Vrs. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294 , has made identical observations.

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8.8. The issue of malus animus was considered in Tara Chand Khatri Vrs. Municipal Corporation of Delhi, AIR 1977 SC 567 = (1977) 2 SCR 198, wherein the Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides , if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fides lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.

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8.9. In J.N. Banavalikar Vrs. Municipal Corporation of Delhi, AIR 1996 SC 326 = 1995 Supp.4 SCR 1 it has been observed as follows:

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“If the administration of a public body or a Government takes a decision which can be demonstrated as lacking in reasonableness and fair-play or tainted with mala fide or arbitrariness, such administrative action even if made by a competent authority, offends the pervasive protection under Article 14 of the Constitution of India against mala fide and arbitrariness in the Governmental action and action of the public bodies, in our view, the appellant would be entitled to ask for quashing the impugned action of his removal from the post of Medical Superintendent if it can be demonstrated to the satisfaction of the Court that such action had been taken without any reasonable basis and not being informed by administrative exigency but merely on the caprice and ipse dixit of the concerned authority or being actuated by mala fide intention.

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***

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The contention of the appellant that in order to accommodate a junior doctor as Medical Superintendent in I.D. Hospital, Dr. Patnaik had been moved out from the said hospital to replace the appellant as Medical Superintendent of RBTB Hospital, is not only vague but lacks in particulars forming the foundation of such contention. Further, in the absence of impleadment of the junior doctor who is alleged to have been favoured by the course of action leading to removal of the appellant and the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the court. ”

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8.10. In Rajneesh Khajuria Vrs. Wockhardt Limited, (2020) 3 SCC 86 while drawing distinction between malice in law and malice in fact, has held malice in law could be inferred from doing a wrongful act intentionally without any just cause or excuse or without there being reasonable relationship to the purpose of exercise of statutory power. On the other hand, malice in fact can be inferred only if there is personal bias or oblique motive behind an administrative action.

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8.11. In State of Bihar Vrs. P.P. Sharma, 1992 Supp (1) SCC 222 = (1991) 2 SCR 1, mala fide has been succinctly expounded by the Hon‟ble Supreme Court of India as (extracted from SCC):

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

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(i) whether there is a personal bias or an oblique motive, and

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

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

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***

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59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or

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excuse or without there being reasonable relation to the purpose of the exercise of statutory power. Malice in law is not established from the omission to consider some documents said to be relevant to the accused. Equally reporting the commission of a crime to the Station House Officer, cannot be held to be a colourable exercise of power with bad faith or fraud on power. It may be honest and bona fide exercise of power. There are no grounds made out or shown to us that the first information report was not lodged in good faith. State of Haryana Vrs. Ch. Bhajan Lal, 1992 Supp. (1) SCC 335 = JT 1990 (4) SC 650 is an authority for the proposition that existence of deep seated political vendetta is not a ground to quash the FIR. Therein despite the attempt by the respondent to prove by affidavit evidence corroborated by documents of the mala fides and even on facts as alleged no offence was committed, this Court declined to go into those allegations and relegated the dispute for investigation. Unhesitatingly I hold that the findings of the High Court that FIR gets vitiated by the mala fides of the Administrator and the chargesheets are the results of the mala fides of the informant or investigator, to say the least, is fantastic and obvious gross error of law.”

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8.12. In yet another Judgment reported as Prabodh Sagar Vrs. Punjab State Electricity Board , (2000) 5 SCC 630 it was held that:

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“*** Incidentally, be it noted that the expression “mala fide” is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be

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appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. *** There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word “mala fide” by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion, i.e., exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. ***”

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8.13. In M. Sankaranarayanan, IAS Vrs. State of Karnataka, AIR 1993 SC 763 = (1992) Supp. (2) SCR 368 , it has been observed that the Court may “draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.”

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8.14. In N.K. Singh Vrs. Union of India, (1994) 6 SCC 98 = (1994) Supp. (2) SCR 772 , the Supreme Court has held that “the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances.” There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted

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by acceptable material. [ Vide, State of UP Vrs. Dr. V.N. Prasad, 1995 Suppl (2) SCC 151; Arvind Dattatraya Dhande Vrs. State of Maharashtra, (1997) 6 SCC 169; Utkal University Vrs. Dr. Nrusingha Charan Sarangi, (1999) 2 SCC 193; Kiran Gupta Vrs. State of U.P., (2000) 7 SCC 719; and Netai Bag Vrs. State of W.B., (2000) 8 SCC 262 ].

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8.15. In State of Punjab Vrs. V.K. Khanna, (2001) 2 SCC 330 = (2000) Supp. (5) SCR 200 , the Apex Court examined the issue of bias and mala fide, observing as under:

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“ Whereas fairness is synonymous with reasonableness4 bias stands included within the attributes and broader purview of the word „malice‟ which in common acceptance means and implies „spite‟ or „ill will‟. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purpose of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice. *** In almost all legal inquiries, „intention as distinguished from motive is the all important factor‟ and in common parlance a malicious act stands equated with an intentional act without just cause or excuse.”

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8.16. Similar view has been reiterated in Samant Vrs. Bombay Stock Exchange, (2001) 5 SCC 323 .

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8.17. In a Judgment reported as HMT Ltd. Vrs. Mudappa , (2007) 9 SCC 768 = (2007) 2 SCR 363, quoting from

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earlier judgment in State of A.P. Vrs. Goverdhanlal Pitti, (2003) 4 SCC 739 = (2003) 2 SCR 908, it was held that „legal malice‟ or „malice in law‟ means „something done without lawful excuse‟. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. The Court held as under:

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“24. The Court also explained the concept of legal mala fide. By referring to Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989 the Court stated: (Goverdhanlal case, (2003) 4 SCC 739, SCC p. 744, para 12)

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„12. The legal meaning of malice is „ill will or spite towards a party and any indirect or improper motive in taking an action‟. This is sometimes described as „malice in fact‟. „Legal malice‟ or „malice in law‟ means „something done without lawful excuse‟. In other words, „it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others.‟ It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the

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owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide.”

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8.18. In Union of India Vrs. Ashok Kumar, (2005) 8 SCC 760 = (2005) Supp. (4) SCR 317 it has been held that,

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“Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man‟s mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh Vrs. State of Punjab, (1964) 4 SCR 733 = AIR 1964 SC 72). It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa Vrs. State of T.N., (1974) 4 SCC 3 = AIR 1974 SC 555 courts would be slow to draw dubious

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inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. Vrs. Ajay Kumar, (2003) 4 SCC 579).”

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8.19. In another Judgment reported as Ratnagiri Gas and Power Private Limited Vrs. RDS Projects Limited, (2012) 9 SCR 690 = (2013) 1 SCC 524, the Hon‟ble Supreme Court held that when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. A judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. The Court held as under:

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

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consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding.”

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8.20. The Hon‟ble Supreme Court of India in All India State Bank Officers‟ Federation Vrs. Union of India, (1997) 9 SCC 151 = (1996) Supp. (6) SCR 255 observed as follows:

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“21. In view of the aforesaid explanation of the respondent-Bank, which we see no reason to disbelieve, it is clear that the petitioners have made baseless and reckless allegations of mala fides. Respondents 4 and 5 obviously had no direct or indirect role to play either in the formulation of the policy or in the memorandum being placed as a table item to be taken up for consideration in the meeting held on 07.03.1989. The modification was approved by the Chairman and all the Directors who were present in the meeting of the Board. For an allegation of mala fide to succeed it must be conclusively shown that Respondents 4 and 5 wielded influence over all the members of the Board who were present in the said meeting. No such allegation has been made. The decision to modify the promotion policy was taken by a competent authority, namely, the Central Board in a duly constituted meeting held on 07.03.1989 and we are

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unable to accept that this change in the policy was brought about solely with a view to help Respondents 4 and 5.

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22. There is yet another reason why this contention of the petitioners must fail. It is now settled law that the person against whom mala fides are alleged must be made a party to the proceeding. The allegation that the policy was amended with a view to benefit Respondents 4 and 5 would amount to the petitioners contending that the Board of Directors of the Bank sought to favour Respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fides, which allegations, in fact, are without merit.”

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8.21. In Federation of Railway Officers Association Vrs. Union of India, AIR 2003 SC 1344 = (2003) 2 SCR 1085 , it has been held as under:

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“ That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations.”

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8.22. Therefore, essentially in Federation of Railway Officers Association Vrs. Union of India, AIR 2003 SC 1344 = (2003) 2 SCR 1085, the Hon‟ble Supreme Court has held that the allegation of mala fide has to be specifically

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made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.

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8.23. The Hon‟ble Supreme Court of India in the case of State of Gujarat Vrs. Paresh Nathalal Chauhan, (2024) 3 SCR 1141, explained “good faith” in the following manner:

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“8. A good faith clause, explained in the vocabulary of the rights and duties regime, can be said to be a provision of immunity to a statutory functionary. Such provisions are in recognition of public interest in a protecting statutory functionary against

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prosecution or legal proceedings. This immunity is limited. It is confined to acts done honestly and in furtherance of achieving the statutory purpose and objective. Section 3(22) of the General Clauses Act, 1897 best explains „good faith‟ as an act done honestly, whether it is done negligently or not. Good faith clauses in statutes providing immunity against suits, prosecution or other legal proceedings against officials exercising statutory power are therefore limited by their very nature, that far, and no further. The scope and ambit of good faith has been explained in a number of decisions of this Court [See Goondla Venkateswarlu Vrs. State of A.P., (2008) 9 SCC 613, paras 22 and 23; Army Headquarters Vrs. CBI, (2012) 6 SCC 228, paras 69-78], which need not be elaborated herein again.

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9. A good faith clause in a statute will therefore be a defense. If successfully pleaded, it not only legitimises the action but also protects the statutory functionary from any legal action. If a statutory

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functionary invokes the defence of good faith in a suit, prosecution or other legal proceedings initiated against him, it is for the court or a judicial body to consider, adjudicate, and determine whether the claim that the action was done in good faith is made out or not. Such a scrutiny, enquiry, or examination is done only in a proceeding against the statutory functionary. This Court has held that the scrutiny whether the act is done in good faith or not would depend upon the facts and circumstances of each case. [Army Headquarters Vrs. CBI, (2012) 6 SCC 228, paras 76-78]”

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8.24. Scanning through the facts pleaded it is manifest from paragraph 16 of the writ petition that “the petitioners apprehend that the authority without publishing the result and calling the members of the Selection Board to change the mark in the interview so that candidates according to their choice will get appointment which is illegal”. Without bringing on record material particulars, the petitioners appeared to be apprehensive of lack of one year post-qualification experience as they have put forth at paragraph 17 of the writ petition that “Out of 40 selected candidates, many candidates did not have one year of post-qualification experience in Clinical Laboratory Services”. By way of rejoinder affidavit the petitioners have made wild allegation that “as per Advertisement at Annexure-3 Clause-XIII it has been clearly mentioned the result of the walk-in-interview will be published in the Official Website. Without publishing

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the same calling the candidates for certificate verification for appointment proves that selection was made illegally”.

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8.25. The aforesaid facts do not prove the mala fide or deliberate attempt on the part of the opposite parties to accommodate their favoured candidates. The petitioners did not choose to implead any of such selected candidates nor could they specify the alleged shortfall with regard to the experience in Clinical Laboratory Services. On the contrary, Sri Bibhu Prasad Tripathy, learned Advocate for the opposite party No.2 has explained the manner of publication of result hosting on the web-portal. He has also taken this Court to the documents forming part of the writ petition to indicate that the Selection Committee have taken pains to scrutinise post-qualification experience of one year in Clinical Laboratory Services. The petitioners under a misconceived fact that the result would not be published in the website have approached this Court. The opposite parties have proffered explanation by way of counteraffidavit as also additional affidavit that they have, in fact, published the result after modification of interim order of this Court.

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8.26. Minute scrutiny of averments it transpires that the petitioners merely attacked the conduct of the opposite parties without bringing on record specific instance. The

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petitioners while making scurrilous attack on the authorities appears to have deliberately ignored to array them as party in person. The allegation that the action of opposite party No.2 is tainted is scurrilous one against the authority who required positions to be filled up with the desired qualification. It is noteworthy that there is no time specified in the Advertisement for publication of results in the website. Without laying down any factual foundation whatsoever and having failed to put forth material particulars the petitioners have failed to substantiate the allegation.

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9. It is next ground of the petitioners to attack the selection process of eligible candidates that since assessment of academic performance was not undertaken by the opposite party No.2, the entire process of selection becomes vulnerable in view of Anzar Ahmed Vrs. State of Bihar, AIR 1994 SC 141 = (1993) Supp (3) SCR 434. In the said reported case, it was the fact that “The applicants appeared for interview before two Boards presided by two members of the Commission. The selection was made on the basis of marks given for viva voce and for academic performance. 100 marks were allotted for viva voce test and 100 marks for academic performance”. On consideration of such factual aspect, the Hon‟ble Supreme Court of India observed that,

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“*** As regards the allocation of marks for viva voce and academic performance for the impugned selection it has been pointed out before us by the learned counsel .appearing for the Commission that in the Counter Affidavit filed on behalf of the Commission before the High Court it was categorically stated that in all cases where the recommendation is made only on the basis of interview conducted by the Commission and no written qualifying examination is conducted , **it has always been the practice of the Commission to fix 50% marks for academic achievement/educational qualifications and 50% marks for interview/viva voce and only in cases where written examination is also conducted by the Commission for screening the candidates, 100 marks are reserved for performance of the candidates in such qualifying examination and 20 marks are reserved for interview/viva voce. ***** This shows that the consistent practice that has been followed by the Commission when selection is made on the basis of interview only is to allocate 50% marks for academic achievement and 50% marks for interview. ***

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In the instant case, we find that the State Government in its letter dated September 20, 1990 has clearly stated that selection should be made on the basis of interview. On the basis of this letter the Commission could have made the selection wholly on the basis of marks obtained at the interview. But in accordance with the past practice, the Commission has made the selection on the basis of interview while keeping in view the academic performance and with that end in view the Commission has allocated 50% marks for academic performance and 50% marks for interview. It cannot be held that the said procedure adopted by the

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Commission suffers from the vice of arbitrariness. By giving equal weight to academic performance the Commission has rather reduced the possibility of arbitrariness.”

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9.1. Such being the distinctive feature in Anzar Ahmed case (supra), the decision upon which the petitioner placed heavy reliance, has no application to the present factsituation. At this juncture, it may be apt to have reference to Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1 = (2011) 7 SCC 397 wherein it has been made explicitly clear that observations of Courts are neither to be read as Euclid‟s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases.

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9.2. The decision of the Hon‟ble Supreme Court of India rendered in Ramesh Kumar Vrs. High Court of Delhi, (2010) 3 SCC 104 = (2010) 2 SCR 256 laying down that “in case no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms of selection may prescribe for the tests and further specify the minimum bench marks for written test as well as for viva voce ”, is distinguishable on facts. Clause-X of General

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Information and Instructions of the Advertisement under Annexure-3 to the writ petition unambiguously prescribes that “The candidates securing 50% and more marks in Final Panel Merit List shall be kept in the Panel with the validity of 01 year from the date of its approval. The Panel for above position shall also remain valid for similar post/in other programmes under NHM ambit with same educational qualification and same remuneration, as will be decided by the Society.” Such condition finds support from the decision taken by an Expert Body in their Meeting held on 21.10.2022 (Annexure-A/2 to the counter affidavit), which is much prior to publication of Advertisement dated 28.02.2023. In the said Meeting, selection procedure for Microbiologist was laid down to the following effect:

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“The Final Merit List shall be prepared as per the marks secured in interview. The candidates securing 50% and more marks in Final Merit List shall be kept in the Panel with the validity of 01 year from the date of its approval.”

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9.3. Thus, the apprehension of the petitioners is without comprehension. Since the selection for the position of “Microbiologist” was decided to be conducted by way of walk-in-interview, the selection procedure decided in the Meeting of the Expert Body held on 21.10.2022 cannot be said to be arbitrary, particularly so when the petitioners claimed to have participated in the walk-in-

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interview with eyes open and having got acquainted with the terms of Advertisement.

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9.4. Sri Susanta Kumar Dash, learned counsel appearing for the interveners, who were allowed by this Court to join as the opposite party Nos.3 to 8 in the instant proceeding, pressed into service the principle laid down in Tajvir Singh Sodhi Vrs. State of Jammu and Kashmir, (2023) 3 SCR 714 = AIR 2023 SC 2014 for appreciating the scope of this Court to interfere with the cases of present nature . The following observations made in the said case would throw light to repel the contentions of the petitioners herein (extracted hereunder from SCR):

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“Selection Process for Public Employment:

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Interference by Courts:

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12. Before proceeding further, it is necessary to preface our judgment with the view that Courts in India generally avoid interfering in the selection process of public employment, recognising the importance of maintaining the autonomy and integrity of the selection process. The Courts recognise that the process of selection involves a high degree of expertise and discretion and that it is not appropriate for Courts to substitute their judgment for that of a selection committee. It would be indeed, treading on thin ice for us if we were to venture into reviewing the decision of experts who form a part of a selection board. The law on the scope and extent of judicial review of a selection process and results thereof, may be

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understood on consideration of the following case law:

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i) In Dalpat Abasaheb Solunke Vrs. Dr. B.S. Mahajan, AIR 1990 SC 434, this Court clarified the scope of judicial review of a selection process, in the following words:

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„9. *** It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the selection committees and to scrutinise the relative merits of the candidates. Whether the candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The Court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. ***‟

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ii) In a similar vein, in Secretary (Health), Department of Health and Family Welfare Vrs. Dr. Anita Puri, (1996) 6 SCC 282, this Court observed as under as regards the sanctity of a selection process and the grounds on which the results thereof may be interfered with:

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„9. *** It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection

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is to be made, the Courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established . It would be prudent and safe for the Courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the Court should not ordinarily interfere with such selection and evaluation. ***‟

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iii) This position was reiterated by this Court in M.V. Thimmaiah Vrs. Union Public Service Commission, (2008) 2 SCC 119, in the following words:

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„21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The Courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion. ***

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30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the

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personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions. ***‟

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iv) Om Prakash Poplai and Rajesh Kumar Maheshwari Vrs. Delhi Stock Exchange Association Ltd., (1994) 2 SCC 117, was a case where an appeal was filed before this Court challenging the selection of members to the Delhi Stock Exchange on the ground that the Selection Committee formed for the aforesaid purpose, arbitrarily favoured some candidates and was thus, against Article 14. This Court rejected the allegation of favouritism and bias by holding as under:

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“5. *** the selection of members by the Expert Committee had to be done on the basis of an objective criteria taking into consideration experience, professional

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qualifications and similar related factors. In the present cases, we find that certain percentage of marks were allocated for each of these factors, namely, educational qualifications, experience, financial background and knowledge of the relevant laws and procedures pertaining to public issues etc. Of the total marks allocated only 20 per cent were reserved for interviews. Therefore, the process of selection by the Expert Committee was not left entirely to the sweet-will of the members of the Committee. The area of play was limited to 20 per cent and having regard to the fact that the members of the Expert Committee comprised of two members nominated by the Central Government it is difficult to accept the contention that they acted in an unreasonable or arbitrary fashion. ***‟

¶283

12.1 Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva voce are excessive and not corresponding to their performance in such

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test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.

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13. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5^th May, 2008 was recast vide a corrigendum dated 12^th June, 2009, without any justifiable reason. In order to consider this contention, regard may be had to the following case law:

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i) In Manish Kumar Shahi Vrs. State of Bihar, (2010) 12 SCC 576, this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently .

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ii) In Ramesh Chandra Shah Vrs. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998. After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same would not be maintainable after participation in the selection process. The pertinent observations of this Court are as under:

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„24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.‟

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iii) Similarly, in Ashok Kumar Vrs. State of Bihar, (2017) 4 SCC 357, a process was initiated for promotion to Class-III posts from amongst Class-IV employees of a civil court. In the said case, the selection was to be

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made on the basis of a written test and interview, for which 85% and 15% marks were earmarked respectively as per norms. Out of 27 (twenty-seven) candidates who appeared in the written examination, 14 (fourteen) qualified. They were interviewed. The committee selected candidates on the basis of merit and prepared a list. The High Court declined to approve the Select List on the ground that the ratio of full marks for the written examination and the interview ought to have been 90:10 and 45 ought to be the qualifying marks in the written examination. A fresh process followed comprising of a written examination (full marks-90 and qualifying marks-45) and an interview (carrying 10 marks). On the basis of the performance of the candidates, results were declared and 6 (six) persons were appointed on Class-III posts. It was thereafter that the appellants along with 4 (four) other unsuccessful candidates filed a writ petition before the High Court challenging the order of the High Court on the administrative side declining to approve the initial Select List. The primary ground was that the appointment process was vitiated, since under the relevant rules, the written test was required to carry 85 marks and the interview 15 marks. This Court dismissed the appeals on the grounds that the appellants were clearly put on notice when the fresh selection process took place that the written examination would carry 90 marks and the interview 10 marks. The Court was of the view that the appellants having participated in the selection process without objection and subsequently found to be not successful, a challenge to the process at their instance was precluded. The relevant observations are as under:

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„13. The law on the subject has been crystalized in several decisions of this Court.

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In Chandra Prakash Tiwari Vrs. Shakuntala Shukla, (2002) 3 SCR 948 this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable.

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In Union of India Vrs. S. Vinodh Kumar (2007) 8 SCC 100, this Court held that:

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„18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same (See also Munindra Kumar Vrs. Rajiv Govil (1991) 3 SCC 368 and Rashmi Mishra Vrs. M.P. Public Service Commission (2006) 12 SCC 724)‟. ***‟

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13.1 It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at

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the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence.

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13.2 This Court in Sadananda Halo Vrs. Momtaz Ali Sheikh, (2008) 3 SCR 497 has noted that the only exception to the rule of waiver is the existence of mala fides on the part of the Selection Board. In the present case, we are unable to find any mala fide or arbitrariness in the selection process and therefore the said exception cannot be invoked.

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Cancellation of the entire selection process: Whether justified?

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14. In the present case, the entire selection of the appellants has been quashed by the High Court primarily on the ground of non-availability of individual award rolls or mark sheets awarding marks individually. Whether such an irregularity would vitiate the entire selection process and set it

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at naught is the next aspect of the matter that requires consideration.

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14.1 The decision of a three-judge Bench of this Court in Kumari Anamica Mishra Vrs. Uttar Pradesh Public Service Commission, Allahabad, AIR 1990 SC 461 involved recruitment to various posts in the educational services of the State of Uttar Pradesh. There was a two-stage recruitment involving a written test and an interview therein. It was found that after the written examination, due to the improper feeding of data into the computer, some candidates who had a better performance in the written examination were not called for interview and candidates who secured lesser marks were not only called for the interview but were finally selected. The entire process was cancelled by the Public Service Commission. In the said context, this Court observed as under:

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„4. We have heard counsel for the parties and are of the view that when no defect was pointed out in regard to the written examination and the sole objection was confined to exclusion of a group of successful candidates in the written examination from the interview, there was no justification for cancelling the written part of the recruitment examination.‟

¶315

The aforesaid case is therefore representative of a situation where the cancellation of the entire recruitment process was held to be not justified since there was no systemic flaw in the written test, and the issue was only with regard to award of marks to the candidates in the interview. The situation could have been remedied by setting aside

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the selection made after the interview stage and calling for a fresh interview of all eligible candidates if the case so warranted which is also not so in the instant case.

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14.2 In Mohinder Sain Garg Vrs. State of Punjab, (1991) 1 SCC 662, 1200 candidates were called for the interview, for filling up 54 posts. Though not through a proper course to have been adopted it was held that it would not vitiate the selection, more particularly when it could not be said to be tainted with mala fides or ill motive.

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14.3 The observations of this Court in Union of India Vrs. Rajesh P.U., (2003) Supp. (1) SCR 883 are highly instructive as regards the question, whether, setting aside the entire selection process would be excessive or disproportionate a remedy in a given case. The pertinent findings of this Court in the said case are as under:

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“*** Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too,

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and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.‟

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14.4 In the present case, the entire selection of the appellants was set aside due to the non-availability of individual award rolls, despite, signed approval of the final Select List by the members of the Board. Whether quashing the entire selection process was excessive or justified, would depend on the selection procedure adopted and whether the same is arbitrary or reveals any mala fides on the part of the selection board. ”

¶326

9.5. Examining the instant case in the light of the above decision(s) of the Hon‟ble Supreme Court of India, it is explicitly clear that nothing is substantiated by the petitioners by demonstrating that there was mala fide in the action of the opposite party No.2 in conducting the interview and there appears no tinge of bias. It could also not been established that the Selection Committee was biased. However, the petitioners have taken part in the selection process without any demur or protest. Therefore, they cannot question the same after being declared unsuccessful and as held by the Hon‟ble Supreme Court that the candidates cannot approbate or reprobate at the same time.

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9.6. Under the above premise, this ground of attack that the selection process was faulty falls to ground.

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10. It is lastly questioned by the counsel for the petitioners referring to the ratio of the Judgment of the Hon‟ble Supreme Court of India rendered in the case of Hemani Malhotra Vrs. High Court of Delhi, (2008) 7 SCC 11 that the Advertisement in Annexure-3 having not specified minimum mark in the interview, said Advertisement is liable to be scrapped and the selection of candidates is required to be quashed.

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10.1. In absence of factual foundation for such contention, the contention based on reported decision is untenable. In absence of specific rules for walk-in-interview, the Expert Body have in their Meeting held on 21.10.2022 adopted procedure for selection, according to which for ascertaining eligibility for the position of “Microbiologist”, qualifications have been prescribed. It has also been provided that candidates securing 50% or more marks in the walk-in-interview would be placed in the Final Merit List. Said Panel would remain valid for one year from the date of approval. It is contended by the opposite party No.2 that the selection has been made on the basis of marks secured in the interview, because the examination for selection was on “walk-in-interview” method. This is in consonance with Clause-X of the General Information and Instructions appended to the Advertisement.

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10.2. It has also been specified in the Advertisement as follows:

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“The authority reserves the right to cancel this advertisement or modify the terms and conditions of this advertisement and the recruitment criteria at any stage of recruitment process without assigning any reason thereof.”

¶336

10.3. In such view of the matter, it is incoherent for the petitioners to submit that changing the criteria without mentioning or issuing corrigendum before selection is not sustainable.

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10.4. In Hemani Malhotra (supra) vide paragraph 14 it has been stated that “it is an admitted position that at the beginning of the selection process, no minimum cut-off marks for viva voce were prescribed”. In the case at hand, Clause-X of the General Information and Instructions appended to the Advertisement made it abundantly clear that candidates securing 50% or more in the interview would be placed in the Final Panel Merit List. Therefore, the argument advanced by Dr. Jitendra Kumar Lenka, learned Advocate that minimum marks to be secured in the walk-in-interview being not specified at the beginning is contrary to record as the cut-off mark was specified in Clause-X of the General Information and Instructions appended to the Advertisement. The petitioners have misread the terms of Advertisement. It

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is needless to observe that simply because the result of the selection process was not palatable to the petitioners, the process of interview could not have been questioned assailing it to be unfair or finding loopholes in such process, more so when the petitioners have participated in the process of selection in terms of the Advertisement.

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Summary and Conclusion:

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11. On the discussed facts coupled with averments and submissions made in course of hearing with reference to the principles enunciated by the Courts, this Court on perusal of record finds that the petitioners have filed the instant writ petition assailing the propriety of selection process for the walk-in-interview as the selection of candidates was made on the basis of 50% or more marks secured in the walk-in-interview by placing them in the Final Panel Merit List, because such process was not palatable to them.

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11.1. Citing non-uploading of the marks in the web-portal is objectionable, the petitioners sought to declare the entire selection process scrapped. On this score, this Court has found substance in the explanation proffered by the opposite party No.2 in the counter-affidavit and additional affidavit filed. Since the Advertisement has also not prescribed any time-limit for hosting results of

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the interview in the website of NHM, the allegation of mala fide or bias is uncalled for. Further, this Court declines to conduct a fishing and roving enquiry about the allegation of such mala fides as the petitioners have not arrayed the persons against whom such scurrilous allegation has been made.

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12. In the wake of aforesaid discussion on the facts and in the circumstances of the case as well as the legal position as enunciated by the Hon‟ble Supreme Court of India referred to supra , this Court finds no valid ground to show indulgence in the selection process of the opposite party No.2 in selecting the candidates who attended the walk-in-interview in response to the Advertisement dated 28.02.2023 (Annexure-3). As consequence thereto, the writ petition is liable to be dismissed, being devoid of merit and this Court does so.

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12.1. Accordingly, the writ petition stands dismissed, but in the circumstances, there shall be no order as to costs.

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(MURAHARI SRI RAMAN) JUDGE

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High Court of Orissa, Cuttack The 11^th September, 2024// Aswini/Suchitra

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 11-Sep-2024 19:42:35

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Madhuchhanda Sahoo v. Odisha State Health and Family Welfare Society, Bbsr

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Madhuchhanda Sahoo v. Odisha State Health and Family Welfare Society, Bbsr

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