Mere Participation In Selection Process By Candidate Cannot Be Held Against Him: Bombay HC Observes

The Bombay High Court recently held that mere participation in the selection process by petitioner cannot be held against him nor for the irregularity committed by the respondent-institute in the selection process can be overlooked on the technical ground of the petitioner’s participation in the selection.

The Court held, "What is made known to the candidates was that a ‘Skill Test/Interaction’ would be conducted. It cannot be said that any idea was given to the candidates that an ‘interview’ would be held. Therefore, even on this ground, it cannot be said that petitioner participated in the selection process with a clear idea that an interview was being held. Therefore, mere participation in the selection by petitioner cannot be held against him nor for the irregularity committed by the respondent-institute in the selection process can be overlooked on the technical ground of the petitioner’s participation in the selection."

The Division Bench of Acting Chief Justice S.V Gangapurwala and Justice Sandeep V. Marne observed that conduct of interview is against the provisions of Cadre Recruitment Rules, 2021 and therefore mere participation by petitioner in the selection process would not validate the same.

Even otherwise, it cannot be held with a degree of certainty that the candidates were made aware in advance about the conduct of interview, since the procedure published along with the syllabus did not prescribe conduct of interview, and what is made known to the candidates was that a ‘Skill Test/Interaction’ would be conducted, added the Bench.

Advocate Rahul Walia appeared for the Petitioner and Advocate Rakesh Singh appeared for the Respondent.

In a nutshell, the Petitioner was aggrieved by the result of the selection process in which no candidate was found suitable for the post of Assistant Engineer in Tata Institute of Social Sciences. Petitioner contended that interview had erroneously been conducted against the provisions of the Rules in place of a Skill Test and even though he had secured substantially higher marks in the Written Test, he was declared ‘not selected’ on the ground of award of lesser marks in the interview. This has led to non-filling up of the advertised posts of Assistant Engineer. Petitioner therefore prays for appointment on the post of Assistant Engineer.

After considering the submissions, the High Court observed that for appointment to Group ‘C’ and Group ‘B’ posts, interviews cannot be conducted under Rule 22(h) of the Tata Institute of Social Sciences (T.I.S.S.) Cadre Recruitment Rules (CRRs), 2021, since the post of Assistant Engineer is undoubtedly a Group ‘B’ post and hence, for filling up the post of Assistant Engineer, the selection cannot comprise of interview.

The procedure so published by the Respondent-Institute does not use the word ‘interview’ but provides for conduct of ‘Skill Test/Interaction’ of 50 marks with minimum qualifying marks of 25, added the Court.

Thus, the High Court noted that the candidates were not made aware that an interview would be conducted, and on the contrary, a representation was made to the effect that a Skill Test/Interaction would be conducted.

The counsel for the respondent argued that the candidates were given some idea about the conduct of interview as the word ‘interaction’ was also used in the procedure so published, and when the petitioner participated in the same without any demur, then he now cannot be permitted to take a volte-face and challenge the selection process.

Answering to such contention on the participation by petitioner in the selection process and challenging the same after being adjudged unsuccessful, the Division Bench said that the law is well settled that once a candidate participates in the selection process, the same cannot be subsequently challenged by him, by relying on the decision of Madan Lal v. State of J&K, (1995) 3 SCC 486.

However, the Bench also clarified that the Apex Court has carved out an exception to said principle in case of Ramesh Kumar Vs. High Court of Delhi and Another (2010) 3 SC 104, and held that minimum marks were prescribed for interview in absence of any statutory requirement and that in such a case, the question of acquiescence would not arise.

The High Court found that apart from the fact that conduct of interview is impermissible under the Cadre Recruitment Rules, 2021, allocation of 50% marks for interview is clearly against the spirit of law laid down by the Apex Court in case of D.G. V/s. Director General, Indian Council for Agricultural Research and Others Versus. D Sundara Raju (2011) 6 SCC 605.

“Petitioner has been working on the post of Engineer on contract basis with the respondents for the last about five long years. It is therefore unfathomable as to how the Selection Committee has given him lesser marks in the Skill Test/Interaction by arriving at a conclusion that he is unfit to be appointed on the post”, added the Court.

The High Court finally observed that the selection committee has awarded 5 out of 10 marks to petitioner in the Skill Test, which is 50%, and all other candidates had secured less than 50% in the Skill Test, which meant that Petitioner has secured highest marks amongst all the seven candidates in the selection.

Therefore, once the petitioner has secured the minimum qualifying marks in the selection process, he ought to have been selected on the advertised post of Assistant Engineer, concluded the Court.

The Division Bench therefore directed the Respondents to treat the petitioner as having qualified in the written and Skill Test/Interaction for the post of Assistant Engineer in pursuance of the advertisement issued in September 2021.

Cause Title:  Rahul Annasaheb Shende v. Tata Institute of Social Sciences and Ors.

Click here to read/download Judgment