IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8:09:2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A. Nos.1403, 1878/2009 and W.P.No.22070/2009 W.A.No.1403 of 2009 :- 1.V.Arumugam 2.M.K.Raghunathan 3.M.Karunanidhi 4.S.Rajan 5.A.I.Noor Mohammed 6.V.Singaravelu 7.V.Babu 8.V.N.Soundararajan 9.S.M.Pandian 10.S.Kamaraj ... Appellants/Respondents 3, 4, 6 to 11, 13 & 14 Vs. 1.R.Kalaiarasan 2.The Government of India, rep. By its Secretary to Government, Ministry of Shipping, Road Transport & Highways, Transport Bhavan, No.1, Parliament Street, New Delhi 110 001. 3.The Chennai Port Trust, rep. By its Chairman, Chennai 1. 4.N.Yeubathan 5.G.Ethirajan ... Respondents/Petitioner Respondents 1 & 2, 5 & 12 W.A.No.1878 of 2009 :- 1.The Chennai Port Trust, rep. By its Chairman, Chennai 1. ... Appellant/2nd Respondent vs. 1.R.Kalaiarasan https://hcservices.ecourts.gov.in/hcservices/ 2.The Government of India, rep. By its Secretary to Government, Ministry of Shipping, Road Transport & Highways, Transport Bhavan, No.1, Parliament Street, New Delhi 110 001. 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.Kamaraj ... Respondents/Petitioner and Respondents 1 and 3 to 12 Writ Appeals filed against the orders passed in W.P.No.13864/2008 dated 15.09.2009. Presented under Article 226 of the Constitution of India, to issue 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 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. W.P.No.22070/2009 J. Abdul Azeez ... petitioner vs. 1.The Government of India, rep. By its Secretary to Government, Ministry of Shipping, Road Transport & Highways, Transport Bhavan, No.1, Parliament Street, New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/ 2.The Chennai Port Trust, rep. By its Chairman, Chennai 1. 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.Kamaraj ... Respondents Presented under Article 226 of the Constitution of India, to issue 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 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. Appearance :- Mr.R.Subramanian, Senior Counsel for M/s.S.Hemalatha, for appellant in W.A.No.1403/2009 respondents 3, 4, 6 to 11, 13 & 14 in W.A.No.1878/2009 RR3 to 14 in WP.22070/09 Mr.R.Karthikeyan, for appellant in W.A.No.1878/2009 for R-3 in W.A.No.1403/2009 for R-2 in W.P.No.22070/2009 Mr.T.S.Rajamohan for petitioner in W.P.No.22070/2009 for R-1 in W.A.No.1403 & 1878/2009 Mr.P.Chandrasekaran, S.C.G.S.C., for R-2 in W.A.No.1403 & 1878/2009 https://hcservices.ecourts.gov.in/hcservices/ Mr.Xavier Felix, for R-4 and R-5 in W.A.No.1403/2009 M/s.Udayabanu for R1 in WP.22070/09 COMMON JUDGMENT ELIPE DHARMA RAO, J. This is the case of an arbitrary manner of selection in a public body, in and by which those candidates who got higher marks for qualification and experience were knocked out of the race by awarding very low marks in the viva voce test, by adopting a strange method of giving uniform marks by all the members of the Selection Committee, after conducting a meeting subsequent to the conclusion of viva voce test of the candidates. 2.These two writ appeals are directed against the order dated 15.09.2009 in W.P.No.13864/2008 whereby and whereunder, selection to the post of Diesel Loco Drivers in the Chennai Port Trust as per proceedings dated 11.06.2008 was set aside. The very same selection is challenged in W.P.No.22070/2009, at the instance of another candidate. 3.The facts, as found in W.A.No.1878/2009, are taken to narrate the background facts. (a)Chennai Port Trust called for applications from eligible candidates working in the said Port Trust for appointment to the post of Diesel Loco Drivers. Notification was issued on 02.04.2008. In response to the said notification, 198 employees submitted their applications. It was found that only 103 were eligible and accordingly, they were called for interview. The first respondent who filed the writ petition in W.P.No.13864/2008 was one among such candidates. Similarly, the petitioner in W.P.No.22070/2009 was also a candidate shortlisted for interview. (b)The Selection Committee took a decision to award 50 marks for qualification, 25 marks for experience and another 25 marks for Viva voce test. Accordingly, Selection Committee interviewed 100 candidates. Ultimately, respondents 3 to 14 were selected under different categories. Selection was challenged on the ground that marks were not awarded as per merit. It was also the contention of the writ petitioner that the members did not choose to award marks assessing the performance and personality of the individual candidates. They have only given consolidated marks and as such, the very procedure was not as per the prescribed method. The first respondent also contended that some of the candidates were not having even the required qualification. 4.Before the learned Single Judge, the appellant in W.A.No.1878/2009/Port Trust admitted that individual marks were not awarded by the members of the Selection Committee. According to them, it was the practice of the Selection Committee to have https://hcservices.ecourts.gov.in/hcservices/ discussion among the members of the committee after the conclusion of interview and thereafter to award marks. In short, it was not their practice to award individual marks by individual members of the Selection Committee. It was also contended that even if the marks omitted to be awarded to the respondent is given, still he cannot be appointed, as there are others in the waiting list above him. Accordingly, the appellant justified the selection. 5.The learned Single Judge found that there were serious discrepancies in the matter of awarding marks. As per the norms prescribed by the Selection Committee, a candidate having experience ranging from 11 to 15 years is entitled for 9 marks. Though the first respondent was having 11 years of experience, he was given only 6 marks. Similar instances were pointed out in respect of other candidates also. The learned Judge also found that marks were not given individually by the Selection Committee consisting of six members. According to the learned Single Judge, the failure on the part of the members of the Selection Committee to award individual marks to the candidates on the basis of their performance in the interview tilted the entire selection process. The learned Judge was of the view that marks were awarded arbitrarily without any prescribed norm. Accordingly, the writ petition was allowed, by setting aside the selection and the appellant/Port Trust was directed to conduct interview afresh for all the hundred candidates and to award marks in the manner indicated in the order. Feeling aggrieved, the Port Trust and the selected candidates are before this Court. 6.The learned Senior counsel for the appellants in W.A.No.1403/2009/ successful candidates contended that the mistake committed in the matter of awarding marks for experience was not a serious one and even if those marks are also taken into consideration, there is no question of giving appointment to the first respondent/writ petitioner as there are other candidates above him. According to the learned Senior Counsel, there was no requirement for giving individual marks by the Selection Committee members and it would be sufficient in case marks are given on aggregate basis by all the members together. The learned Senior Counsel further contended that the Selection Committee adopted a fair procedure and awarded marks in accordance with the said procedure. Therefore, it was not open to the first respondent/writ petitioner to challenge the said procedure after subjecting himself to the selection process. 7.The learned Standing Counsel for the Appellant in W.A.No.1878/2009/ Port Trust justified the selection. According to the learned counsel, it was not the practice of the Port Trust to grant individual marks by the Selection Committee. According to him, after the conclusion of viva voce test of the candidates, the members of the Selection Committee would assemble for a meeting and after discussion, marks would be awarded to the candidates interviewed. Therefore, there was nothing wrong in awarding marks in https://hcservices.ecourts.gov.in/hcservices/ the manner it was done by the members of the Selection Committee. 8.The learned counsel for the first respondent in both the writ appeals supported the Order passed by the learned Single Judge. According to the learned counsel, the selection was in fact, a farce. According to the learned counsel, the first respondent/writ petitioner clearly stated in the affidavit filed in support of the Writ Petition about the role played by some of the unions in getting their candidates selected and there was no denial of such averments in the counter affidavit filed on behalf of the Port Trust. The learned counsel further contended that the Selection Committee members have, in fact, awarded marks without separately assessing the performance of the candidates. Therefore, the very procedure was arbitrary and as such, it was rightly set aside by the learned Single Judge. 9.The learned Standing Counsel for the Chennai Port Trust produced the selection file for our verification, and we have gone through the entire file. 10.The Chennai Port Trust as per proceedings dated 07.03.2007 approved the proposal for filling up the post of diesel loco driver. It was decided that the selection should be by way of written test and interview. Subsequently, fresh approval was given by the Chairman of the Port Trust on 01.03.2008 for filling up of 11 vacancies in the category of diesel loco driver. The Chairman accorded approval for conducting written and viva voce test. The Port Trust found that during the meeting of the Heads of the Departments held on 27.09.2006, it was decided to conduct written test for 75 marks, practical test for 15 marks, 5 marks for qualification and another 5 marks for experience. There was another proposal made during March 2007 to conduct written test for 50 marks and to award 50 marks for interview. In the meantime, General Secretary, Madras Railway Mens Union met the Chairman of the Port Trust on 29.02.2008. It was only in the said meeting, the earlier decision to conduct written test was changed and a fresh decision was taken to award 75 marks for experience and 25 marks for interview. The said 75 marks was further divided by giving 50 marks for qualification and 25 marks for experience. Remaining 25 marks was earmarked for viva voce test. 11.In response to the notification issued by the Port Trust on 02.04.2008, the Selection Committee received 198 applications from the eligible employees of the Port Trust. Though the method of selection to the post of diesel loco driver was direct recruitment, selection was intended to be done only from the eligible employees of the Port Trust. The Selection Committee consists of six members, chaired by the Chief Mechanical Engineer. The Selection Committee interviewed 100 candidates and ultimately respondents 3 to 14 were selected. https://hcservices.ecourts.gov.in/hcservices/ 12.The selection file produced by the Standing Counsel gives a clear indication that marks were not awarded individually by the members of the Selection Committee. In fact, it was the admitted case of the Port Trust before the learned Single Judge that marks were not given immediately to each of the candidates and it was given only after conclusion of viva voce test. Even before us, the learned Standing Counsel for the Port Trust submitted that it was not the practice of the Port Trust to award marks to the candidates by the members of the Selection Committee separately. According to the learned counsel, marks would be awarded to the candidates for their performance in viva voce test, after the conclusion of the interview. 13.There was no written test for appointment to the post of diesel loco driver. Marks were awarded for qualification as well as experience. Therefore, marks awarded for viva voice test by the Selection Committee acted as the determining factor in the matter of selection. 14.Since the first respondent took a specific contention before the learned Single Judge that it was only the marks awarded in viva voce test which tilted the balance in favour of the selected candidates, we have examined the proceedings relating to the selection as well as the marks awarded in respect of the candidates who appeared for the interview. 15.The Appellant has selected 12 candidates under the category of Scheduled Caste, Other Community and Other Backward Community. It is found that majority of candidates who got more marks for experience got only lesser marks in the interview. Therefore, only on account of the interview marks, majority of these candidates were selected. 16.The following table would give a clear idea about the part played by the marks awarded in viva voce test. Category :: Scheduled Caste (selected) Sl .N o. Name Marks for Qualificatio n Marks for experien ce Total marks for qualification and experience Marks for interv iew Total marks 1 V.Arumugam 50 10 60 21 81 2 Kamaraj 45 5 50 15 65 3 Karunanithi 50 5 55 18 73 https://hcservices.ecourts.gov.in/hcservices/ Category :: Scheduled Caste (non selected) Sl .N o. Name Marks for Qualificati on Marks for experie nce Total marks for qualificati on and experience Marks for interview Total marks 1 Kalaiarasan (petitioner in WP No.13864/200 8 ) 50 6 56 5 61 2 Kandasami 50 7 57 5 62 3 Ponnurangam 50 6 56 7 63 4 Arunagiri 50 6 56 5 61 5 Lakshmi 50 6 56 5 61 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Category :: Other Community (Selected) Sl .N o. Name Marks for Qualificat ion Marks for experie nce Total marks for qualificati on and experience Marks for interview Total marks 1 Yesupatham 45 11 56 18 74 2 Raguranathan 45 11 56 19 75 3 Singaravelu 45 5 50 20 70 4 Rajan 45 7 52 20 72 5 Noor Mohammed 45 7 52 19 71 Category :: Other Community (Non selected) Sl .N o. Name Marks for Qualifica tion Marks for experie nce Total marks for qualificati on and experience Marks for interv iew Total marks 1 Dhanya Kumar 50 10 60 6 66 2 Gnana Sekaran 50 10 60 5 65 3 Dana Sekaran 45 11 56 7 63 4 Sathyamoorthi 45 11 56 7 63 https://hcservices.ecourts.gov.in/hcservices/ Sl .N o. Name Marks for Qualifica tion Marks for experie nce Total marks for qualificati on and experience Marks for interv iew Total marks 5 Kulasekaran 50 6 56 6 62 6 Jagannathan 50 7 57 6 63 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Category :: OBC (selected) Sl .N o. Name Marks for Qualificat ion Marks for experien ce Total marks for qualification and experience Marks for interv iew Total marks 1 Sundar Rajan 45 10 55 13 68 2 Ethirajulu 45 7 52 15 67 3 Pandian 50 10 60 6 66 Category :: OBC (non selected) Sl .N o. Name Marks for Qualificat ion Marks for experie nce Total marks for qualification and experience Marks for intervi ew Total marks 1 Victor Albert 50 10 60 5 65 2 Saravanabhavan 45 13 58 5 63 3 Subramani 50 6 56 5 61 4 Elangovan 50 6 56 5 61 5 Sethuraman 50 6 56 5 61 6 Selvamani 50 6 56 5 61 7 Bhaskar Rao 50 6 56 5 61 8 Abdul Aziz [petitioner in WP No.22070/09] 50 3 53 7 60 17.The above table shows that except a few, others have got only lesser marks for "qualification" and "experience". But for the higher marks obtained in the viva voce test, most of the selected candidates would not have been selected. Therefore, we have no hesitation to hold that the interview marks really tilted the scales in favour of the selected candidates. The marks for viva voce test were awarded in a most arbitrary manner, thereby vitiating the entire selection. https://hcservices.ecourts.gov.in/hcservices/ 18.The first respondent in the W.A.No.1403/2009 who filed the Writ Petition was a candidate in the Scheduled Caste category. Though he obtained 56 marks for qualification and experience, he was not selected as he got only 5 marks in the interview. However, those candidates who got 50 and 55 marks for qualification and experience were selected as they were awarded marks ranging from 15 to 18 for the viva voce test. 19.There is no dispute that the Selection Committee took a decision to award marks separately for qualification and experience. Therefore, marks should have been awarded as per the said guidelines. However, very strangely, marks were not awarded for experience as per the norms. As per the records of selection, the first respondent was having 11 years of experience. Therefore, he was entitled to 9 marks. However, he was awarded only 6 marks. Similarly, other candidates were also awarded less marks for experience, disregarding their experience. The learned Standing Counsel for the Appellant contended that even if correct mark was awarded for experience, there was no chance for the petitioner to get a march over the other selected candidates. Such a contention cannot be accepted in the present matter. The way in which marks for viva voce test were awarded gives a clear indication that those marks were awarded without any basis and by sheer favouritism. 20.It is true that in the absence of a particular norm requiring award of marks, individually for presentation, personal aptitude etc., there is no requirement for such separate award of marks. However, that does not mean that individual members of the Selection Committee need not award marks separately and it would be sufficient in case they meet at a later point of time to award marks. There is nothing on record much less in the minutes of the Selection Committee as to how marks were awarded by the committee in aggregate without there being anything to show about the marks noted by the members whenever a candidate was interviewed. The contention raised by the learned counsel for the first respondent with respect to the undue influence exerted by the Madras Railways Men's Union in the matter of selection assumes significance in this context. The first respondent, in the affidavit filed in support of the Writ Petition and more particularly in paragraph 8 of the affidavit, has alleged large scale irregularities in the matter of selection. There is also an indication in the Selection Committee file about the part played by the said Union in changing the method of selection. Though there was a general denial of all these allegations, the fact remains that the Port Trust has not specifically answered the contentions raised by the first respondent with respect to the irregularities. 21.There is nothing on record to justify the contention that it was the practice of the Port Trust to award marks for viva voce after the conclusion of interview. Admittedly, 100 candidates were interviewed by the Selection Committee. The so called practice of https://hcservices.ecourts.gov.in/hcservices/ conducting a meeting after the conclusion of the interview for the purpose of awarding viva voce test was not even referred to in the counter affidavit. None of the documents produced by the Port Trust, including the minutes of the Selection Committee contains any material with respect to such practice. Therefore, the theory advanced on behalf of Port Trust during the course of arguments about the award of marks by conducting a meeting after the viva voce test was intended only to justify the arbitrary manner of award of marks in the subject case. 22.The Supreme Court in Jasvinder Singh v. State of J&K, (2003) 2 SCC 132, observed that what ultimately required to be ensured is as to whether the allocation, as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. 23.The facts of the subject case gives a clear picture that the award of marks in the viva voce test was done in a most arbitrary manner and with a avowed purpose to tilt the balance in favour of the selected candidates. Majority of the selected candidates got very high marks though they were awarded less marks for experience as well as for qualification. All these happened on account of the absence of proper guidelines regarding award of marks for viva voce test. The minutes of the Selection Committee does not contain any material about the manner and method of award of marks. Therefore, it is evident that the viva voce marks alone decided the fate of the candidates. 24.In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, Supreme Court found that the spread of marks for viva voce was enormously large compared to the marks awarded in the written test. The Supreme Court observed that in such cases, viva voce test tended to become a determining factor in the process of selection. "26. ... The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. It is therefore obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness and in order to diminish, if not eliminate, the risk of arbitrariness, the percentage needs to be reduced. https://hcservices.ecourts.gov.in/hcservices/ 25.In Asok Kumar case [cited supra], the Supreme Court indicated that the correct percentage of marks in viva voce test depends upon variety of factors. The Supreme Court said ::- "29 ... We would therefore direct that hereafter in case of selections to be made to the Haryana Civil Services (Executive Branch) and other Allied Services, where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2 per cent of the total marks taken into account for the purpose of selection. We would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow." 26.In P.Mohanan Pillai v. State of Kerala, (2007) 9 SCC 497, while setting aside the selection on the ground of awarding 50% marks for oral interview, the Supreme Court drew an inference of favouritism. The Supreme Court held as follows :- "16. In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav and subsequent cases,