Prabhat Kumar v. Chairman, Bihar State Electricity Board, Patna

counter affidavit and have opposed the writ petition.

2. The facts essential for the disposal of the writ petition are not in dispute and may be indicated. The Board issued an advertisement bearing Employment Notice No. 05/2007 (Annexure-1), which appeared in a local news paper in January, 2008, inviting applications for different posts. We are concerned with the twelve vacancies of Assistant Executive Engineer, G.T.O. Cadre (Mechanical). The advertisement indicates that six 2 posts have been allocated to the un-reserved /general category, and the balance six posts have been distributed amongst different categories. Two vacancies have been allocated to the reserve category of B.C. The petitioner has applied for consideration against this category. The selection process comprises of three parts. The first part is of written test, and the second part is of viva-voce test. The third and the final phase comprises of Computer Literacy test wherein the candidate has to score a minimum of 50 qualifying marks which shall not be added to the final/total marks obtained by the candidates. In other words, the candidates who have crossed the first two phases have only to score the minimum qualifying marks in the Computer Literacy Test. It further appears that the Board out- sourced the first two phases of the selection process to an outside agency, and the third phase (the Computer Literary Test) has been out-sourced to two other outside agencies jointly.

2.1. The combined merit list of the first two phases is marked Annexure-6 to the writ petition. The petitioner figures at serial no. 14 of this list. The Board called 12 candidates for the Computer Literacy Test, out of whom only 10 appeared in the test. In view of the position that the petitioner figured at sl.no. 14 of the combined merit list (Annexure-6), he was not called for the Computer Literacy Test. It further appears from the materials on record that five amongst these ten persons scored the minimum qualifying marks in the Computer Literacy Test, and 3 the remaining five persons failed. The respondent authorities have issued orders calling upon the failed candidates to appear for the Computer Literacy Test for the second time, giving them a fresh opportunity. It is evident that the petitioner was not called for the first round of Computer Literacy Test, he has been deprived of the opportunity on this occasion also.

3. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the respondent authorities had made the basic error of calling as many candidates as the number of vacancies in the Computer Literacy Test. He also submits that the Computer Literacy Test was admittedly faulty.

4. Learned counsel for the respondents has supported the impugned action. He submits that in an effort to establish fairness in the selection process, he has sought to compare the merit list prepared at various stages. He also submits that the policy decision for the Computer Literacy Test was formulated by the Board way back on 20.9.2000(Annexure-D), and is being consistently followed. He lastly submits that the Board has acted with utmost fairness and objectivity.

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. I do not find it possible to agree with the policy decision adopted by the Board to the effect that the same number of candidates as those of the vacancies would be invited for the last phase of the 4 selection process. Such a process does not take into account various relevant factors, for example, all the candidates may not appear at the test. The petitioner is a candidate for the reserved category of B.C. In view of the reservation policy, it is a possible situation that one or more than one from amongst the candidates of this category may find their way into the list of general candidates, causing vacancy in the reserved category. The persons above the petitioner may fail to score minimum qualifying marks in the last phase of the selection process and the petitioner’s prospects may improve. Some of the selected persons may not join also.

6. Law is well settled that the authorities should not for the viva-voce test, invite more than twice or at the highest thrice the number of candidates than the number of vacancies to be filled up. Reference may be made to the judgments of the Supreme Court reported in (1985) 4 SCC 417(Ashok Kumar Yadav & Ors. Vrs. State of Haryana & Ors.), and (1991) 1 SCC 662 (Mohinder Sain Garg & Ors. Vrs. State of Punjab & Ors.). I am mindful of the position that most of the judgments deal with the situation where the final phase of selection process comprises of viva-voce test which is not the case here. The same, in my opinion, does not make any difference in so far as applicability of this principle is concerned, namely, calling two to three times the number of vacancies for the final stage of the selection process. The principle is applicable to the present case 5 where the final phase of selection process comprises of Computer Literacy Test and candidate has to score the minimum qualifying marks only which shall not be added to his total marks. The prospects of the petitioner may improve for any one or more than one of the circumstances indicated in the preceding paragraph hereinabove. I am equally mindful of the factual back-ground of the two judgments of the Supreme Court. Those were cases where the authorities had called far too many candidates for the viva-voce test. Therefore, the Supreme Court stated that two to three times the number of vacancies may be called for viva-voce. The principle is equally applicable to a situation like the present one, the idea being to take care of the circumstances indicated hereinabove, such other circumstances.

7. There is yet another aspect of the matter. On the own showing of the respondents, the Computer Literacy Test was defective and some of the questions were out of syllabus. Paragraph 9 of the counter affidavit is reproduced hereinbelow: “That the Computer Literacy Test was conducted on 26.10.2009 in which some of the candidates could not secure minimum qualifying marks and a number of candidates complained that the Software loaded in the computer on which the online computer literacy test was conducted was defective as well as the questions asked were out of syllabus i.e. M.S., Office.” The respondent authorities have failed to realize that such a situation may operate favourably for some body, and may operate harshly against others. The respondent authorities 6 have committed the grave error of retaining the successful candidates out of a defective selection process, and have tried to give second opportunity to the unsuccessful candidates. The Board has failed to realize the gravity of the matter resulting in miscarriage of justice, leaving behind serious doubts about the validity of this phase of the selection process. In my view, it is not possible to separate the grain from chaff in such a situation.

8. In the result, this writ petition is allowed. The whole of the third phase of the selection process, namely, the Computer Literacy Test, is set aside. The respondent authorities are hereby directed to frame a fresh policy decision of calling two to three times the number of vacancies for the final phase of the selection process. Vinay/ ( S. K. Katriar , J.)