SCA/16049/2005 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16049 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= HITESHKUMAR K.CHAUHAN Versus UNION OF INDIA THR' GENERAL MANAGER AND OTHERS ========================================= Appearance : MR CB GANDHI for MR MB GANDHI for the Petitioner MS AVANI S MEHTA for Respondent Nos.1 and 2 None for Respondent Nos.3 and 4 ========================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 27/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) The petitioner being aggrieved and dissatisfied by order SCA/16049/2005 2/11 JUDGMENT dated 02.05.2005, whereby the Central Administrative Tribunal, Ahmedabad Bench rejected Original Application No.90 of 2003 and also disposed of Misc. Application No.174 of 2004, is before this Court. 2. The facts giving rise to the present petition are as under: 2.1 The petitioner is a handicapped person, who in response to a notification issued by the respondents for filling up the vacancies of Group “C” and “D” posts against quota for handicapped persons, applied and appeared in the written test held on 19.11.2000. 2.2 The petitioner being successful in the written test was called for Viva Voce. The case of the petitioner is that he appeared well in Viva Voce. As the petitioner did not find his name in the list of successful candidates, he made a representation to the respondent authorities. The father of the petitioner, who was an ex Railway employee, also approached the Senior Divisional Personnel Officer, Bhavnagar Division with a request to consider the case of the petitioner sympathetically. The petitioner did not receive any reply from the office of respondent No.2, i.e. Divisional Railway Manager and therefore, the petitioner approached the Central Administrative Tribunal by filing the aforesaid Original Application No.90 of 2003. 2.3 It is the case of the petitioner that there were 4 vacancies notified for handicapped persons, out of which only 3 were filled in; that the petitioner was asked to furnish a latest certificate SCA/16049/2005 3/11 JUDGMENT depicting his handicapness; that the action of the respondent authorities of asking the petitioner to furnish a latest certificate showing his handicapness suggests that the name of the petitioner was under consideration; that even after the petitioner furnished the latest certificate, he is not considered for appointment. 2.4 The petitioner alleged some foul play in the process of recruitment. It is also the case of the petitioner that the family of the petitioner is dependent on pension, received by his father; that he is the only son of his parents, that too handicapped; that he is not able to render any assistance to his father. 2.4 The Original Application was contested by filing a reply, wherein it was contended by the respondent authorities that in response to the notification for filling up 'four' vacancies, reserved for handicapped persons, 1335 candidates had applied; that all these candidates were called for the written examination; that the petitioner was successful in the written examination and hence, he was called for Viva Voce; that he could not succeed in Viva Voce and therefore, his name was not shown in the list of selected candidates. 2.5 The respondents had stated in the reply that out of 4 (four) vacancies, 2 (two) vacancies were reserved for orthopaedic handicapped, 1 (one ) for hearing handicapped and one for visually handicapped; that as no visually handicapped was available, the said vacancy was not filled in; that the petitioner had applied for SCA/16049/2005 4/11 JUDGMENT the orthopaedic handicapped category; that the certificate produced by the petitioner was of the year 1991 and therefore, the Committee desired the petitioner to furnish a fresh certificate. The respondents had contended that having appeared in the selection and having failed to clear the same, the applicant cannot turn around and challenge the selection process. The respondents prayed for the dismissal of the Original Application with costs. 2.6 The petitioner, having learnt about the Viva Voce result, amended the Original Application alleging that the Selection Committee had not adopted any criteria for awarding the marks in the Viva Voce; that the awarding of only 2 (two) marks out of 15 (fifteen) in Viva Voce is arbitrary and requires to be set aside; that the petitioner was given such low marks only with a view to see that the petitioner does not get selected; that the performance of the petitioner was very good in the written test as well as in Viva Voce. 3. We have heard learned advocate Mr.Gandhi for the petitioner and Ms.Avani Mehta, learned Standing Counsel for the respondent – Railway authorities. 4. The learned advocate for the petitioner submitted that the petitioner is subjected to injustice inasmuch as, though he scored the highest marks in the written test, in Viva Voce, he is given only 2 marks out of 15 marks which is not only unjust but also arbitrary and requires to be quashed and set aside by this Court. Learned SCA/16049/2005 5/11 JUDGMENT advocate for the petitioner submitted that the Tribunal has erred in not appreciating that the action of the respondent authorities of giving only 2 marks out of 15 marks to the petitioner in Viva Voce, when the petitioner had scored highest marks in the written test out of 1335 candidates, is an arbitrary action and warranted to be quashed and set aside by this Court. He submitted that the act of awarding such low marks is only with a view to see that the petitioner is deprived of appointment. 4.1 The learned advocate for the petitioner also submitted that the respondent authorities had not informed the petitioner that there is any minimum passing standard prescribed in Viva Voce. 4.2 The learned advocate for the petitioner reiterated that after the petitioner passed the written test, he was called for Viva Voce and thereafter he was asked to furnish a fresh certificate showing extent of his handicapness. He submitted that the petitioner had submitted the certificate from Civil Surgeon, Civil Hospital, Junagadh, a copy of which is produced at Annexure-A, wherein it is stated that: “This is to certify that Shri/Smt/Kum Hitesh K.Chauhan aged about 29 years of Junagadh has been examined at the Orthopaedic Unit of this Hospital and found that he/she has Cont Jt. (RT) having approximately 40% forty percentage of disability. Hence he/she is physically handicapped person.” 5. As is noticed from the order of the Tribunal the file of SCA/16049/2005 6/11 JUDGMENT selection, impugned, was called for by the Tribunal for perusal. This Court also asked the learned Standing Counsel to make available the original file for perusal. The same was made available and the Court had perused. 5.1 During the course of arguments, Ms.Avani Mehta, learned Standing Counsel for the respondent authorities, was asked about the marks scored by the petitioner in the written test. The learned Standing Counsel revealed that the written test was for 85 marks and the petitioner had scored 76. On further inquiry, the learned Standing Counsel further revealed that the marks scored by the petitioner were the highest. 5.1 On perusal of the file of the selection under challenge, it could not be found as to what was the nature of Viva Voce and what made the petitioner to score only 2 marks out of 15 when he (the petitioner) had scored 76 out of 85 marks in the written test. The Court also did not notice any minimum standard prescribed for passing in the Viva Voce. The other candidates along with the petitioner had scored as under in the written test and Viva Voce: Sr. No. Name S/Shri Roll No. Code No. Marks obtained in written test out of 85 Marks obtained in P/intervi ew out of 15 Total Rem arks 1) Jayantkumar D 827 C305 64.22 15 79.22 2) Petitioner – Chauhan Hiteshkumar K 731 C299 76.50 02 78.50 3) Rajeshkumar R 497 C350 63.28 08 71.28 SCA/16049/2005 7/11 JUDGMENT Sr. No. Name S/Shri Roll No. Code No. Marks obtained in written test out of 85 Marks obtained in P/intervi ew out of 15 Total Rem arks 4) Pravinkumar B.Saluja 128 1 C513 62.33 05 67.33 5) Navinkumar O 481 282 62.33 03 65.33 6. The learned advocate for the petitioner submitted that it is a settled law that Viva Voce cannot be given such weightage or status of indispensability that the result of the written test stands wiped out. In this regard, the learned advocate for the petitioner relied upon a decision of the Hon'ble the Apex Court in the matter of Ajay Hasia Vs. Khalid Mujib Sehravardi And Others, reported in AIR 1981 Supreme Court 487. The learned advocate submitted that the Hon'ble the Apex Court had an occasion to deal with the desirability of Viva Voce in the matter of selection for admission to educational institutions. He further submitted that the Hon'ble the Apex Court has held that Viva Voce examination is a permissible test for selection of candidates for admission to college. The learned advocate placed reliance on the following observations made by the Hon'ble the Apex Court: “It cannot be said that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for SCA/16049/2005 8/11 JUDGMENT measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. However in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.” 6.1 The learned advocate submitted that the Hon'ble the Apex Court has held that: “The allocation of as high a percentage as 33 1/3 of the total marks for the oral interview should be regarded as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained. Under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.” 7. The learned advocate for the petitioner submitted that the petitioner had applied for Group “C” and “D” post, reserved for handicapped persons. That being so, it is not warranted that a candidate like the petitioner is eliminated on the basis of his score in Viva Voce, more particularly when he scored the highest marks SCA/16049/2005 9/11 JUDGMENT in the written test. 7.1 The learned advocate for the petitioner submitted that though in the present case, the marks alloted to Viva Voce is 15, but then without intimating the candidates about the minimum qualifying marks in Viva Voce and the fact that the petitioner, who had scored the highest marks in the written test, out of 1335 candidates, awarding only 2 marks out of 15 to the petitioner speaks for itself. 8. The learned Standing Counsel appearing for the respondent authorities submitted that the certificate produced by the petitioner, a copy of which is at Annexure-A to the petition, does not depict that the petitioner is having more than 40% disability. 9. The submission of the learned Standing Counsel cannot be accepted for the simple reason that this is not the ground on which the petitioner is denied the appointment. Besides, the disability is 'approximately 40%' and therefore, the case of the petitioner ought to have been considered by the respondent authorities. 10. We have perused the order passed by the Tribunal. The Tribunal has rejected the application of the petitioner only on the ground that the petitioner, having failed to clear Viva Voce, cannot claim any right to be appointed to the post in question. 10.1 The Tribunal has erred in rejecting the allegations of the petitioner, which was made by way of amendment. It was alleged by the petitioner that the Selection Committee had not adopted the SCA/16049/2005 10/11 JUDGMENT procedure prescribed in the master circular and had not alloted the marks in the criteria fixed by the master circular; that in the Viva Voce, the marks were not allotted to different heads and as such, the Selection Committee had allotted the marks arbitrarily resulting into the petitioner getting only 2 marks out of 15 marks; that at the time of Viva Voce, the Selection Committee was aware of the marks received by each candidate in the written examination and therefore, the Selection Committee intentionally gave low marks to the petitioner so that he is not selected. 10.2 The Tribunal has turned down these allegations by saying that the petitioner has not substantiated the aforesaid allegations by any evidence or any circular. It is also observed that no master circular as contended is produced by the petitioner to show that marks are required to be allotted to different heads. 11. The file produced for perusal by the learned Standing Counsel for the respondent authorities does contain the answer books of the candidates, but is not having any material to show as to how the Viva Voce was conducted by the Selection Committee, i.e. whether the marks allotted to different heads so as to assess a candidate in Viva Voce. It is a matter of which a judicial notice can be taken that when a candidate has scored the highest marks out of 1335 candidates, he cannot be given only 2 marks out of 15 in Viva Voce, without recording the valid reasons for the same. The justice requires that the record of the Selection Committee, who SCA/16049/2005 11/11 JUDGMENT conducted the Viva Voce ought to have been specific and eloquent enough to justify itself. The result sheet of 8 candidates, who appeared for Viva Voce is also produced for perusal in the file, wherein surprisingly, 1 candidate has scored 15 out of 15 marks, other candidate has scored 14 out of 15 marks, whereas all the other candidates have scored less then 10 marks out of 15 marks, viz. 2, 8, 5, 3, 3 and 5. In absence of any material to show that 15 marks of Viva Voce were having any breakup and in a particular head, the candidate having failed to satisfy the requirement of the Selection Committee, it is difficult to uphold the marks of the Selection Committee of Viva Voce. 12. In view of the above discussion, the petition is allowed. Respondent Nos.1 and 2 are directed to consider the petition's case for appointment to Group “C” post on the basis of the petitioner's performance at the selection held in 2001 by combining the petitioner's marks at the written test and the oral interview and on the basis that the petitioner is a physically handicapped person. This shall be done against the existing vacancy within 2 months from the date of receipt of copy of this judgment and order or the first vacancy arising hereafter. Rule is made absolute. No costs. (M.S.SHAH, J.) (RAVI R.TRIPATHI, J.) *Shitole