IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.09.2009 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.13864 of 2008 R.Kalaiarasan .... Petitioner Vs. 1.The Government of India, rep. by its Secretary to Government, Ministry of Shipping, Road Transport and Highways, Transport Bhavan, No.1, Parliament Street, New Delhi 110 001. 2.The Chennai Port Trust, Rep. by its Chairman, Chennai 600 001. 3.V.Arumugam 4.M.K.Raghunathan 5.N.Yesubatham 6.M.Karunanidhi 7.S.Rajan 8.A.I.Noor Mohammed 9.V.Singaravelu 10.V.Babu 11.V.N.Soundararajan 12.G.Ethirajan 13.S.M.Pandian 14.S.Kamaran Respondents 3 to 14 impleaded as per Court order dated 28.04.2009 in M.P.No.5 of 2002 in W.P.No.13864 of 2008 ... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorified Mandamus, calling for the records of the respondents particularly that of the 2nd respondent in regard to the selection of 12 candidates for the post of Diesel Loco Driver in Chennai Port Trust by virtue of letter No.CME/EA1/365/08/Estt., dated 11.06.2008 and quash the same as illegal, unlawful and not commensurate with the terms and conditions postulated under 2nd respondent's circular "Manner of Appointment to the post of Diesel Loco Driver" in regard to Selection Process and consequently direct the respondents to call https://hcservices.ecourts.gov.in/hcservices/ for fresh list of applicants for the post of Diesel Loco Driver in Chennai Port Trust by postulating the guidelines to be followed and adopted for such selection and there by selecting the petitioner for the post of Diesel Loco Driver. {Prayer amended as per Court Order dated 28.4.2009 in M.P.No.6/08 in W.P.No.13864/08} [Prayer amended as per court order dated 02.09.2008 made in W.P.No.4 of 2008 in W.P.No.13864 of 2008] For petitioner : Mr.T.S.Rajamohan For respondent (s): Mr.P.N.Peruvazhuthi for R1 Mr.R.Dharanichander for R2 Mr.R.Subramanian, SC for M/s.S.Hemalatha for RR 3 to 14 ORDER The petitioner is working as a Technician Grade III in Electrical and Mechanical Engineering Department of Chennai Port Trust. The Chennai Port Trust called for applications from the eligible candidates working in the Chennai Port Trust for the post of Diesel Loco Drivers by Notification dated 02.04.2008. The last date for submission of application was 11.04.2008. The qualification for making application is a pass in III Form or VIII Standard and preference would be given for those who are holding National Apprenticeship Certificate in Mechanic, Diesel Mechanic or Electrician Trade. Yet another essential qualification is experience as follows:- (a) Must have experience in operation of equipments provided with Diesel Hydraulic/Diesel Electric Drivers fitted with diesel engine not less than 200 BHP. (OR) (b) Must have worked as skilled artisans not less than the rank of Gr.III for not less than 3 years in maintenance and repairs of Diesel Enginees not less than 200 BHP; (OR) (c) Must have worked as skilled artisan not below the rank of Gr.III for not less than 3 years in the maintenance of electrical equipments having not less than 100 KW installed power. https://hcservices.ecourts.gov.in/hcservices/ As per Notification, preference would be given for those who have got experience in the maintenance of Diesel Loco and Electrical Traction Equipments. The process of selection would involve a pass in Traffic Train working rules test and also a pass in test on operation of diesel loco with Diesel Hydro and Diesel Electric Drivers (both) . The upper age limit is 35 years. 2. As many as 198 employees made application, out of whom 103 were found to be eligible and they were called for interview, which include the petitioner and the respondents 3 to 14 also. A total number of 100 candidates attended the interview. The interview was conducted by a selection committee consisting of six members. The President of the Committee is the Chief Mechanical Engineer. The Members are Secretary, SME (R & D), Executive Engineer (C), A.C.O.S., and Analyst Programmer. The selection committee formulated the following norms for awarding marks to the qualification and experience:- Qualification Marks 1 VIII Std. upto SSLC failed 40 2 SSLC failed/passed and Plus 2 failed with NAC 45 3 Plus 2 passed and above with NAC 50 Experience Marks 1 1 year to 5 years 3 2 6 years to 10 years 6 3 11 years to 15 years 9 4 16 years to 20 years 12 5 21 years to 25 years 15 6 Above 25 years 18-25 For performance and personality in the interview 25 3. With the above formulated norms, the interview committee interviewed the candidates. At last, the interview committee selected 12 candidates, who are the respondents 3 to 14 herein. Based on the same, the respondents 3 to 14 have been appointed as Diesel Loco Drivers. The petitioner was not selected. Challenging the appointment of the respondents 3 to 14 and his non-selection, the petitioner has come forward with the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 4. Initially , this writ petition was filed with a prayer to declare that the entire recruitment process is null and void as the same is tainted with capriciousness, arbitrariness and coupled with extraneous consideration and consequently to direct the respondents 1 and 2 to go for fresh recruitment for the said post of Diesel Loco Driers. This writ petition was filed on 12.06.2008. Initially, the respondents 3 to 14 were not parties to the writ petition. This Court ordered notice of motion to the respondents 1 and 2. Subsequently, in the counter affidavit, it was brought to the notice of this Court that the respondents 3 to 14 had already been appointed and therefore, on an application filed by the petitioner, the respondents 3 to 14 were added as respondents to this writ petition. On another petition made by the petitioner, by order dated 02.09.2008, the prayer in the writ petition was also amended. The present prayer as amended is to quash the selection of the respondents 3 to 14 and consequently direct the respondents 1 and 2 to call for fresh list of applications for the post of Diesel Loco Drivers by postulating the guidelines to be followed and adopted for such selection. 5. In the affidavit filed in support of the writ petition, it is contended by the petitioner that the entire process of selection for the post of diesel loco drivers was done in a most suspicious, arbitrary, colourable and discriminatory manner coupled with extraneous consideration. In the reply affidavit filed by the petitioner, it is stated that that of the candidates, who have been selected did not have the experience as required by the notification in the field. It is further stated that in respect of marks to be awarded for the experience, there are anomalies. It is further stated that the petitioner, for having 11 years of experience, though as per the norms he is entitled for 9 marks, has been awarded only 6 marks. Similarly for several other candidates marks have not been properly awarded for the experience. Though the interview was conducted by the committee consisting of 6 members, each member did not chose to award marks on assessing the performance and personality of each candidate and instead, there is only a consolidated marks given for each candidate, which is not correct, it is contended. 6. It is admitted by the respondents 1 and 2 that marks have not been awarded as per the norms in respect of experience. The learned counsel appearing for the 2nd respondent, when a specific query was posed on him as to why the marks were not awarded as per the norms in respect of the experience, is not in a position to explain as to why the norms were given a go by. It is, however, stated by the learned counsel for the 2nd respondent that at the time of interview all the 6 members, as soon as a particular candidate was interviewed, would have a small conference, in which , they would arrive at a consensus regarding marks to be awarded for such candidate and in such a way, marks were awarded at the time of interview. It is further contended https://hcservices.ecourts.gov.in/hcservices/ that for personality and performance at the interview, separate marks need not be given. It is further stated that based on the marks awarded for qualification, experience and the marks awarded at the interview, the respondents 3 to 14 were selected. Thus, there is no irregularity or illegality in the matter of appointment, it is contended. 7. Similar is stand taken by the respondents 3 to 14 in their counter affidavit. A detailed statement showing the particulars in respect of education and technical qualification of various candidates and their experience in the field has been appended to the counter affidavit filed by the respondents 3 to 14. According to them, even if marks had been awarded in accordance with the norms prescribed by the Selection Committee, the petitioner would not have got selected. They would further submit that the respondents 3 to 14 are all fully eligible as they have got basic qualification and that is the reason why they were permitted to participate in the interview. It is further contended that separate marks need not be awarded for personality and performance at the interview. 8. The learned senior counsel appearing for the respondents 3 to 14 would rely on the judgement in Madan Lal and others v. State of J & K and others (1995) 3 Supreme Court Cases 486, wherein the Hon'ble Supreme Court has held that separate marks need not be awarded under various heads and it would be suffice, if a consolidated assessment is made under various heads and marks are awarded on that basis. 9. I have heard the learned counsel for petitioner, the learned counsel for the 1st respondent, learned counsel for the 2nd respondent and also the learned senior counsel for the respondents 3 to 14. I have also perused the records carefully. 10. Indisputably, marks have not been awarded as per the norms formulated in respect qualification and experience. For example, though the petitioner has got 11 years of experience for which he is entitled for 9 marks, he has been awarded only 6 marks. For the candidates, who have got experience between 6 years and 10 years , 9 marks have to be awarded. In the same way, the statement of marks appended to the typed set of papers by the 2nd respondent would go to show that for several candidates marks have not been awarded in accordance with the norms formulated by the Committee. For example, for one candidate, namely Yesubadam (Sl.No.3), who had 18 years of experience has been awarded only 11 marks, whereas he is entitled for 12 marks. Similarly, in the case of Mr.Ponnurangam (Sl.No.4), who had 18 years of experience has been awarded only 11 marks, whereas he is entiteld for 12 marks. Further, Mr.V.Arumugam (Sl.No.5), who had 17 years of experience though eligible for 12 marks, has been awarded only 10 marks. Mr.A.K.Saravanabhavan (Sl.No.6), who had got 21 years of experience, though eligible for 15 marks, has been awarded only 13 marks. Similarly for all the https://hcservices.ecourts.gov.in/hcservices/ candidates, marks for experience have not been awarded in accordance with norms formulated by the Selection Committee. There is no explanation offered by the learned counsel appearing for the respondents 1 and 2 as to why the norms in the matter of awarding of marks for experience were given a go by. This, in my considered opinion,is unreasonable and arbitrary on the part of the respondents 1 and 2. 11. In the matter of awarding marks for personality and performance at the interview, as per the norms formulated by the selection committee, the total marks set apart is 25. Admittedly, 6 members committee interviewed the candidates. But, the members have not assessed the performance and personality of each candidate separately and awarded marks therefor. The normal practice would be that each member should award marks based on his own assessment and then all such marks awarded by the members shall be taken into account together for the purpose of calculating average marks scored by each candidate. But the said procedure has not been followed in the case on hand. The learned counsel appearing for the respondents 1 and 2 would say that the practice is, as soon as the candidate is interviewed and he goes out of the interview room, all the members would hold a small conference and by consensus marks would be awarded for such candidate. The learned counsel for the 2nd respondent would submit that this is the practice going on for several years in the Chennai Port Trust. In my considered opinion, interview should always be transparent and there should not be even a slightest room for arbitrariness or favouritism. If only each member assesses individually the performance of a candidate and awards marks, the same would reflect transparency and avoid any arbitrariness. The said process has not been followed in this case. The learned counsel appearing for the 2nd respondent has got no explanation to offer for the same. 12. The learned senior counsel appearing for the respondents 3 to 14 would rely on the judgement rendered in Madan Lal's case cited supra to substantiate his contention that for and performance at the interview separate marks need not be awarded. The learned senior counsel takes me through para 14 of the judgement, wherein the Hon'ble Supreme Court has held as follows:- "14. Now it becomes at once clear that when 75 marks were to be assigned to a candidate called for oral interview on the basis of the aforesaid five types of performances by the candidate, the assessment on first three tests would depend upon the documentary evidence regarding his career record which the candidates can furnish to the Interview Committee while the last two tests will depend upon his performance at the interview. In view of this hybrid type of tests for which assessment was to be made at the oral interview, 75 marks assigned for all these five tests necessarily had to be split up and https://hcservices.ecourts.gov.in/hcservices/ from the career record of the candidate, separate marks had to be assigned for first three tests and that necessarily required separate assessment of marks on the remaining two heads of tests. It is in the light of this requirement of peculiar type of marking at the oral interview that it has been observed in paras 16 and 17 of the report that it was clearly illegal to give marks in a lump sum and that the Committee had not divided the marks under various heads nor on itemwise basis. It is also to be kept in view that while selecting a student for admission in MBBS course, what is more important is his performance in the written test and even at the oral interview his past record of performance has its own weight. A student while undertaking study is not required to perform any duty of a public office. But in the case of recruitment to the posts of Munsif he is required to work at the grassroot level of State Judiciary. For candidates aspiring to be appointed in such a judicial office, apart from the written test, his overall performance at the oral interview is more important and consequently the split-up of marks under various subheads at oral interview of such a candidate may not be strictly necessary unless the concerned rule regulating such a viva voce test expressly provides to that effect. As we have seen earlier Rule 10(1)(b) does not so prescribe and hence it was open to the Members of the Committee to make an overall assessment of the interviewed candidates keeping in view the various factors for such assessment as laid down by the said rule. That is precisely what has been done in the present case as stated by Dr Girija Dhar, a Member of the Interview Committee in para 3 of her affidavit-in-reply. It is stated by her that the only considerations which the Members of the Interview Board had during the viva voce test were to judge the candidates on the basis of their intelligence, general knowledge, personality, aptitude and suitability as required by Rule 10(1)(b) of the recruitment rules, that all the questions directed at the candidates in the viva voce test were with this object in view and the assessment had been made of the candidates at the viva voce test accordingly. As a matter of fact, the particulars furnished by the candidates in their applications in pursuance of the advertisement only had been placed before the Members of the Interview Board. The results of the candidates at the written examination were not placed before the Members of the Interview Board. Nothing has been pointed out by the learned Senior Counsel for petitioners to disbelieve this version. No bias is also alleged against her or any https://hcservices.ecourts.gov.in/hcservices/ other member who made the selection. It cannot therefore be said that Rule 10(1)(b) was violated by the Interview Committee while conducting viva voce test. It may also be mentioned at this stage that decision of this Court in Minor A. Peeriakaruppan v. State of T.N. was later considered by this Court in the case of Lila Dhar v. State of Rajasthan. In Lila Dhar case this Court distinguishing the ratio in Peeriakaruppan case observed as under: “It is true that in Peeriakaruppan case the Court held that the non-allocation of marks under various heads in the interview test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was thought that the failure to allocate marks under each head or distinct test was an illegality. But, in the case before us, the rule merely and generally indicates the criteria to be considered in the interview test without dividing the interview test into distinct, if we may so call them, sub-tests.” The aforesaid decision in Lila Dhar case was approved by a Constitution Bench of this Court speaking through Bhagwati, J. as he then was in Ashok Kumar Yadav v. State of Haryana. This aspect was also considered later by a Division Bench of this Court speaking through Chinnappa Reddy, J. in Keshav Ram Pal (Dr) v. U.P. Higher Education Services Commission, Allahabad. An identical contention concerning viva voce test conducted by the interview board which had not subdivided the total marks into subheads was rejected in that case. Chinnappa Reddy, J. speaking for the Division Bench observed that the Interview Board was not under any obligation to subdivide the marks under various heads. The Court noted that the basis of selection in that case was to assess the candidates’ academic attainments, technical experience, administrative experience and suitability for the post of Principal. In the light of that rule it was held by this Court in the aforesaid decision that the interview board was not under any obligation to subdivide the marks under various heads. Almost an identical position obtains in the present case. Consequently, it must be held that there was no obligation for the Members of the Commission to give separate marks under various heads facultywise as mentioned in Rule 10(1)(b). The first contention therefore fails and is rejected. https://hcservices.ecourts.gov.in/hcservices/ 13. Relying on the same, the learned senior counsel would submit that there is no illegality or irregularity in awarding consolidated marks under both heads namely performance and personality. Of course, in view of the law laid down by the Hon'ble Supreme Court in this regard, the contention of the learned counsel for the petitioner that the marks should have been separately awarded for personality and performance at the interview needs to be rejected. But, on that score alone the case of the petitioner cannot be rejected. As I have already stated, the petitioner is bound to succeed in this case on the grounds that the norms for awarding of marks has been given a go by and also that the assessment of performance and personality has not been done separately by each member of the selection committee. 14. Though, it is stated in the reply affidavit that many candidates who have been selected did not have the essential qualification of experience as required under the notification, it is submitted by the leaned senior counsel for the respondents 3 to 14 that the selected candidates have got experience sufficiently as required under the notification. In the tabulation appended to the counter filed by the respondents 3 to 14, the particulars of experience in various fields had by the selected candidates have been furnished. In this regard, I do not want to express any opinion, since, I am inclined to set aside the selection of the respondents 3 to 14 on the other grounds stated above. 15. Now, a question arises as to what is the next course to be ordered to be followed by the respondents 1 and 2. The learned senior counsel appearing for the respondents 3 to 14 would submit that re-allotment of marks as per the norms may be ordered to be done among the respondents 3 to 14 and the petitioner and to select 12 out of them. He would further submit that the benefit of this judgement should not be extended to the candidates who have not come to the Court. But, I am not able to persuade myself with the said argument. It is not the concern of this court as to who comes to the court; who does not come to the Court;, who comes to the Court with a different plea; or who comes to the Court belatedly. The object of the very selection is to select the best and meritorious candidate among the candidates applied for such post or posts. Some candidates who are incapable of coming to this Court for want of wherewithal may have better qualification and may also have the right to be selected. Merely for the reason that they have not come to this Court, justice cannot be denied to them. In the matter of selection, it should be the endeavour of the respondents 1 and 2 to see that the meritorious candidates are alone selected in the interest of the organisation. 16. In an identical situation in Dr Santosh Kumari v. Union of India [1995 (1) SCC 269] , while considering the question as to whether to confine the relief only to those who have come to the Court or to extend the same to others who have not come to the https://hcservices.ecourts.gov.in/hcservices/ court, in paragraph No.8, the Hon'ble Supreme Court has held as follows:- “8.The third respondent who appeared in person-and we must say, she put forward her case with admirable clarity and grace-submitted that inasmuch as none of the said six candidates including Dr Vibha Aggarwal and Dr Shiv Prasad Aggarwal have chosen to approach the court complaining of their non-admission, they should not be considered for admission against the said seat and that she, who had approached the court at the earliest possible moment, should be admitted to that seat. She relied upon the decision of this Court in Ashok V. State of Karnataka in support of the said submission. It is not possible to agree. The allotment of seats should go according to merit. It does not depend upon who comes to court and who does not. The matter is one of principle and should not depend upon comes to the court. A more deserving candidate may not have the means to approach the court. Be that as it may, even the Division Bench of the Rajasthan High Court has not directed that the said seat should be given to the third respondent (appellant before them). On the other hand, they have directed the official respondents to “consider the candidature of the petitioner (third respondent in this appeal) or any other candidate who may deserve the admission to that said post”. The Division Bench has further directed that “proper notice on the Notice Board may be affixed by the respondents in all the colleges giving 15 days’ time for making applications and the