V.Arumugam v. R.Kalaiarasan

#2. The Chennai Port Trust, rep. By its Chairman, Chennai 1.3.V.Arumugam4.M.K.Raghunathan5.N.Yesubatham6.M.Karunanidhi7.S.Rajan8.A.I.Noor Mohammed9.V.Singaravelu10.V.Babu11.V.N.Soundararajan12.G.Ethirajan13.S.M.Pandian14.S.Kamaraj...RespondentsPresented under Article 226 of the Constitution of India, toissue a Writ of Certiorified Mandamus, calling for the records ofthe respondents particularly that of the 2nd respondent in regard tothe selection of 12 candidates for the post of Diesel Loco Driver inChennai Port Trust by virtue of letter No.CME/EA1/365/08/Estt.,dated 11.06.2008 and quash the same as illegal, unlawful and notcommensurate with the terms and conditions postulated under 2ndrespondent's circular "Manner of Appointment to the post of DieselLoco Driver" in regard to Selection Process and consequently directthe respondents to call for fresh list of applicants for the post ofDiesel Loco Driver in Chennai Port Trust by postulating theguidelines to be followed and adopted for such selection and thereby selecting the petitioner for the post of Diesel Loco Driver. Appearance :-Mr.R.Subramanian, Senior Counselfor M/s.S.Hemalatha, for appellant in W.A.No.1403/2009respondents 3, 4, 6 to 11, 13 & 14in W.A.No.1878/2009RR3 to 14 in WP.22070/09Mr.R.Karthikeyan, for appellant in W.A.No.1878/2009for R-3 in W.A.No.1403/2009for R-2 in W.P.No.22070/2009Mr.T.S.Rajamohanfor petitioner in W.P.No.22070/2009for R-1 in W.A.No.1403 & 1878/2009Mr.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.1403/2009M/s.Udayabanufor R1 in WP.22070/09COMMON JUDGMENTELIPE DHARMA RAO, J.This is the case of an arbitrary manner of selection in apublic body, in and by which those candidates who got higher marksfor qualification and experience were knocked out of the race byawarding very low marks in the viva voce test, by adopting a strangemethod of giving uniform marks by all the members of the SelectionCommittee, after conducting a meeting subsequent to the conclusionof viva voce test of the candidates.2.These two writ appeals are directed against the order dated15.09.2009 in W.P.No.13864/2008 whereby and whereunder, selection tothe post of Diesel Loco Drivers in the Chennai Port Trust as perproceedings dated 11.06.2008 was set aside. The very same selectionis challenged in W.P.No.22070/2009, at the instance of anothercandidate.3.The facts, as found in W.A.No.1878/2009, are taken to narratethe background facts. (a)Chennai Port Trust called for applications fromeligible candidates working in the said Port Trust for appointmentto the post of Diesel Loco Drivers. Notification was issued on02.04.2008. In response to the said notification, 198 employeessubmitted their applications. It was found that only 103 wereeligible and accordingly, they were called for interview. The firstrespondent who filed the writ petition in W.P.No.13864/2008 was oneamong such candidates. Similarly, the petitioner inW.P.No.22070/2009 was also a candidate shortlisted for interview.(b)The Selection Committee took a decision to award 50marks for qualification, 25 marks for experience and another 25marks for Viva voce test. Accordingly, Selection Committeeinterviewed 100 candidates. Ultimately, respondents 3 to 14 wereselected under different categories. Selection was challenged on theground that marks were not awarded as per merit. It was also thecontention of the writ petitioner that the members did not choose toaward marks assessing the performance and personality of theindividual candidates. They have only given consolidated marks andas such, the very procedure was not as per the prescribed method. The first respondent also contended that some of the candidates werenot having even the required qualification.4.Before the learned Single Judge, the appellant inW.A.No.1878/2009/Port Trust admitted that individual marks were notawarded by the members of the Selection Committee. According tothem, 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 conclusionof interview and thereafter to award marks. In short, it was nottheir practice to award individual marks by individual members ofthe Selection Committee. It was also contended that even if themarks omitted to be awarded to the respondent is given, still hecannot be appointed, as there are others in the waiting list abovehim. Accordingly, the appellant justified the selection. 5.The learned Single Judge found that there were seriousdiscrepancies in the matter of awarding marks. As per the normsprescribed by the Selection Committee, a candidate having experienceranging from 11 to 15 years is entitled for 9 marks. Though thefirst respondent was having 11 years of experience, he was givenonly 6 marks. Similar instances were pointed out in respect of othercandidates also. The learned Judge also found that marks were notgiven individually by the Selection Committee consisting of sixmembers. According to the learned Single Judge, the failure on thepart of the members of the Selection Committee to award individualmarks to the candidates on the basis of their performance in theinterview tilted the entire selection process. The learned Judge wasof the view that marks were awarded arbitrarily without anyprescribed norm. Accordingly, the writ petition was allowed, bysetting aside the selection and the appellant/Port Trust wasdirected to conduct interview afresh for all the hundred candidatesand to award marks in the manner indicated in the order. Feelingaggrieved, the Port Trust and the selected candidates are beforethis Court.6.The learned Senior counsel for the appellants inW.A.No.1403/2009/ successful candidates contended that the mistakecommitted in the matter of awarding marks for experience was not aserious one and even if those marks are also taken intoconsideration, there is no question of giving appointment to thefirst respondent/writ petitioner as there are other candidates abovehim. According to the learned Senior Counsel, there was norequirement for giving individual marks by the Selection Committeemembers and it would be sufficient in case marks are given onaggregate basis by all the members together. The learned SeniorCounsel further contended that the Selection Committee adopted afair procedure and awarded marks in accordance with the saidprocedure. Therefore, it was not open to the first respondent/writpetitioner to challenge the said procedure after subjecting himselfto the selection process.7.The learned Standing Counsel for the Appellant inW.A.No.1878/2009/ Port Trust justified the selection. According tothe learned counsel, it was not the practice of the Port Trust togrant individual marks by the Selection Committee. According to him, after the conclusion of viva voce test of the candidates, themembers of the Selection Committee would assemble for a meeting andafter discussion, marks would be awarded to the candidatesinterviewed. 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 writappeals supported the Order passed by the learned Single Judge. According to the learned counsel, the selection was in fact, afarce. According to the learned counsel, the first respondent/writpetitioner clearly stated in the affidavit filed in support of theWrit Petition about the role played by some of the unions in gettingtheir candidates selected and there was no denial of such avermentsin the counter affidavit filed on behalf of the Port Trust. Thelearned counsel further contended that the Selection Committeemembers have, in fact, awarded marks without separately assessingthe performance of the candidates. Therefore, the very procedure wasarbitrary and as such, it was rightly set aside by the learnedSingle Judge.9.The learned Standing Counsel for the Chennai Port Trustproduced the selection file for our verification, and we have gonethrough the entire file.10.The Chennai Port Trust as per proceedings dated 07.03.2007approved the proposal for filling up the post of diesel loco driver.It was decided that the selection should be by way of written testand interview. Subsequently, fresh approval was given by theChairman of the Port Trust on 01.03.2008 for filling up of 11vacancies in the category of diesel loco driver. The Chairmanaccorded approval for conducting written and viva voce test. ThePort Trust found that during the meeting of the Heads of theDepartments held on 27.09.2006, it was decided to conduct writtentest for 75 marks, practical test for 15 marks, 5 marks forqualification and another 5 marks for experience. There was anotherproposal made during March 2007 to conduct written test for 50 marksand to award 50 marks for interview. In the meantime, GeneralSecretary, Madras Railway Mens Union met the Chairman of the PortTrust on 29.02.2008. It was only in the said meeting, the earlierdecision to conduct written test was changed and a fresh decisionwas taken to award 75 marks for experience and 25 marks forinterview. The said 75 marks was further divided by giving 50 marksfor qualification and 25 marks for experience. Remaining 25 markswas earmarked for viva voce test.11.In response to the notification issued by the Port Trust on02.04.2008, the Selection Committee received 198 applications fromthe eligible employees of the Port Trust. Though the method ofselection to the post of diesel loco driver was direct recruitment, selection was intended to be done only from the eligible employeesof the Port Trust. The Selection Committee consists of six members, chaired by the Chief Mechanical Engineer. The Selection Committeeinterviewed 100 candidates and ultimately respondents 3 to 14 wereselected. https://hcservices.ecourts.gov.in/hcservices/

#12. The selection file produced by the Standing Counsel gives aclear indication that marks were not awarded individually by themembers of the Selection Committee. In fact, it was the admittedcase of the Port Trust before the learned Single Judge that markswere not given immediately to each of the candidates and it wasgiven only after conclusion of viva voce test. Even before us, thelearned Standing Counsel for the Port Trust submitted that it wasnot the practice of the Port Trust to award marks to the candidatesby the members of the Selection Committee separately. According tothe learned counsel, marks would be awarded to the candidates fortheir performance in viva voce test, after the conclusion of theinterview.13.There was no written test for appointment to the post ofdiesel loco driver. Marks were awarded for qualification as well asexperience. Therefore, marks awarded for viva voice test by theSelection Committee acted as the determining factor in the matter ofselection.14.Since the first respondent took a specific contention beforethe learned Single Judge that it was only the marks awarded in vivavoce test which tilted the balance in favour of the selectedcandidates, we have examined the proceedings relating to theselection as well as the marks awarded in respect of the candidateswho appeared for the interview.15.The Appellant has selected 12 candidates under the categoryof Scheduled Caste, Other Community and Other Backward Community. Itis found that majority of candidates who got more marks forexperience got only lesser marks in the interview. Therefore, onlyon account of the interview marks, majority of these candidates wereselected. 16.The following table would give a clear idea about the partplayed by the marks awarded in viva voce test. Category :: Scheduled Caste (selected)Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualificationand experienceMarksforinterviewTotalmarks1V.Arumugam50106021812Kamaraj4555015653Karunanithi505551873 https://hcservices.ecourts.gov.in/hcservices/ Category :: Scheduled Caste (non selected)Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualification andexperienceMarks forinterviewTotalmarks1Kalaiarasan(petitionerin WPNo.13864/2008 )506565612Kandasami507575623Ponnurangam506567634Arunagiri506565615Lakshmi50656561- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Category :: Other Community (Selected)Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualification andexperienceMarks forinterviewTotalmarks1Yesupatham45115618742Raguranathan45115619753Singaravelu4555020704Rajan4575220725Noor Mohammed457521971Category :: Other Community (Non selected)Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualification andexperienceMarksforinterviewTotalmarks1Dhanya Kumar5010606662Gnana Sekaran5010605653Dana Sekaran4511567634Sathyamoorthi451156763 https://hcservices.ecourts.gov.in/hcservices/ Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualification andexperienceMarksforinterviewTotalmarks5Kulasekaran506566626Jagannathan50757663- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Category :: OBC (selected)Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualificationand experienceMarksforinterviewTotalmarks1Sundar Rajan45105513682Ethirajulu4575215673Pandian501060666Category :: OBC (non selected)Sl.No.NameMarks forQualificationMarksforexperienceTotal marksforqualificationandexperienceMarksforinterviewTotalmarks1Victor Albert5010605652Saravanabhavan4513585633Subramani506565614Elangovan506565615Sethuraman506565616Selvamani506565617Bhaskar Rao506565618Abdul Aziz[petitioner inWP No.22070/09]5035376017.The above table shows that except a few, others have gotonly lesser marks for "qualification" and "experience". But for thehigher marks obtained in the viva voce test, most of the selectedcandidates would not have been selected. Therefore, we have nohesitation to hold that the interview marks really tilted the scalesin favour of the selected candidates. The marks for viva voce testwere awarded in a most arbitrary manner, thereby vitiating theentire selection. https://hcservices.ecourts.gov.in/hcservices/

#18. The first respondent in the W.A.No.1403/2009 who filed theWrit Petition was a candidate in the Scheduled Caste category. Though he obtained 56 marks for qualification and experience, he wasnot selected as he got only 5 marks in the interview. However, thosecandidates who got 50 and 55 marks for qualification and experiencewere selected as they were awarded marks ranging from 15 to 18 forthe viva voce test. 19.There is no dispute that the Selection Committee took adecision to award marks separately for qualification and experience. Therefore, marks should have been awarded as per the saidguidelines. However, very strangely, marks were not awarded forexperience as per the norms. As per the records of selection, thefirst respondent was having 11 years of experience. Therefore, hewas entitled to 9 marks. However, he was awarded only 6 marks. Similarly, other candidates were also awarded less marks forexperience, disregarding their experience. The learned StandingCounsel for the Appellant contended that even if correct mark wasawarded for experience, there was no chance for the petitioner toget a march over the other selected candidates. Such a contentioncannot be accepted in the present matter. The way in which marks forviva voce test were awarded gives a clear indication that thosemarks were awarded without any basis and by sheer favouritism. 20.It is true that in the absence of a particular normrequiring award of marks, individually for presentation, personalaptitude etc., there is no requirement for such separate award ofmarks. However, that does not mean that individual members of theSelection Committee need not award marks separately and it would besufficient in case they meet at a later point of time to awardmarks. There is nothing on record much less in the minutes of theSelection Committee as to how marks were awarded by the committee inaggregate without there being anything to show about the marks notedby the members whenever a candidate was interviewed. The contentionraised by the learned counsel for the first respondent with respectto the undue influence exerted by the Madras Railways Men's Union inthe matter of selection assumes significance in this context. Thefirst respondent, in the affidavit filed in support of the WritPetition and more particularly in paragraph 8 of the affidavit, hasalleged large scale irregularities in the matter of selection. Thereis also an indication in the Selection Committee file about the partplayed by the said Union in changing the method of selection. Thoughthere was a general denial of all these allegations, the factremains that the Port Trust has not specifically answered thecontentions raised by the first respondent with respect to theirregularities.21.There is nothing on record to justify the contention that itwas the practice of the Port Trust to award marks for viva voceafter the conclusion of interview. Admittedly, 100 candidates wereinterviewed 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 thepurpose of awarding viva voce test was not even referred to in thecounter affidavit. None of the documents produced by the Port Trust, including the minutes of the Selection Committee contains anymaterial with respect to such practice. Therefore, the theoryadvanced on behalf of Port Trust during the course of argumentsabout the award of marks by conducting a meeting after the viva vocetest was intended only to justify the arbitrary manner of award ofmarks 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 isas to whether the allocation, as such is with an oblique intentionand whether it is so arbitrary as capable of being abused andmisused in its exercise. 23.The facts of the subject case gives a clear picture that theaward of marks in the viva voce test was done in a most arbitrarymanner and with a avowed purpose to tilt the balance in favour ofthe selected candidates. Majority of the selected candidates gotvery high marks though they were awarded less marks for experienceas well as for qualification. All these happened on account of theabsence of proper guidelines regarding award of marks for viva vocetest. The minutes of the Selection Committee does not contain anymaterial about the manner and method of award of marks. Therefore, it is evident that the viva voce marks alone decided the fate of thecandidates.24.In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417,Supreme Court found that the spread of marks for viva voce wasenormously large compared to the marks awarded in the written test. The Supreme Court observed that in such cases, viva voce test tendedto become a determining factor in the process of selection. "26. ... The spread of marks in the viva vocetest being enormously large compared to the spread ofmarks in the written examination, the viva voce testtended to become a determining factor in the selectionprocess, because even if a candidate secured thehighest marks in the written examination, he could beeasily knocked out of the race by awarding him thelowest marks in the viva voce test andcorrespondingly, a candidate who obtained the lowestmarks in the written examination could be raised tothe top most position in the merit list by aninordinately high marking in the viva voce test. It istherefore obvious that the allocation of such a highpercentage of marks as 33.3 per cent opens the doorwide for arbitrariness and in order to diminish, ifnot eliminate, the risk of arbitrariness, thepercentage needs to be reduced. https://hcservices.ecourts.gov.in/hcservices/

#25. In Asok Kumar case [cited supra], the Supreme Courtindicated that the correct percentage of marks in viva voce testdepends upon variety of factors. The Supreme Court said ::-"29 ... We would therefore direct that hereafterin case of selections to be made to the Haryana CivilServices (Executive Branch) and other Allied Services, where the competitive examination consists of awritten examination followed by a viva voce test, themarks allocated for the viva voce test shall notexceed 12.2 per cent of the total marks taken intoaccount for the purpose of selection. We would suggestthat this percentage should also be adopted by thePublic Service Commissions in other States, because itis desirable that there should be uniformity in theselection process throughout the country and thepractice followed by the Union Public ServiceCommission should be taken as a guide for the StatePublic 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 offavouritism. The Supreme Court held as follows :-"16. In this case allocation of marks forinterview was in fact misused. It not only contravenedthe ratio laid down by this Court in Ashok Kumar Yadavand subsequent cases, but in the facts andcircumstances of the case, it is reasonable to draw aninference of favouritism. The power in this case hasbeen used by the appointing authority for unauthorisedpurpose. When a power is exercised for an unauthorisedpurpose, the same would amount to malice in law."27.In Inder Parkash Gupta v. State of J&K, (2004) 6 SCC 786,the Supreme Court once again made an observation with respect toaward of marks in viva voce test. The observation reads thus ::-"34. It is true that for allocation of marks forviva voce test, no hard-and-fast rule of universalapplication which would meet the requirements of allcases can be laid down. However, when allocation ofsuch marks is made with an intention which is capableof being abused or misused in its exercise, it isliable to be struck down as ultra vires Article 14 ofthe Constitution of India."28. Why the impugned selection is bad :- https://hcservices.ecourts.gov.in/hcservices/ (i)Though originally a decision was taken to conduct writtentest, it was dispensed with subsequently. In such circumstances, theSelection Committee should have framed a transparent procedure forawarding marks in the viva voce test.(ii)Though 25 marks was earmarked for interview, there wasnothing on record to indicate as to how marks should be awarded inthe viva voce test.(iii)Selection Committee was constituted with six members. However, none of the members of the Selection Committee awardedmarks individually to the candidates.(iv)The minutes of selection contains only the aggregate ofmarks awarded by the members of the Selection Committee together.(v)The selection norm does not permit the members of theSelection Committee to conduct a meeting subsequent to the interviewfor the purpose of awarding marks in the viva voce test. The socalled meeting, as argued by the learned Senior Counsel for theAppellant, was not found mentioned in the counter affidavit filed inthe Writ Petition. Therefore, it was really an improvement intendedto justify the selection.(vi)There was a huge difference in the matter of awardingmarks. Candidates who got more marks for experience, were given veryless marks for the interview. Therefore, viva voce test played aprominent role in the matter of selecting inexperienced candidatesand non selection of experienced persons.(vii)Marks were not awarded for experience as per norms. Thosewho got more experience like the writ petitioner were given lessmarks, and the said fact alone contributed for their non selection.(vii)Interview marks tilted the balance.(viii)Marks were awarded in a most arbitrary manner.29.Though the first respondent has taken up a furthercontention that some of the selected candidates were not having thebasic qualification, the said contention was not subjected todetailed examination, as the learned Judge was convinced that theselection has to be set aside on the first two grounds. We are ofthe opinion that in the absence of consideration of the saidcontention by the learned Judge, it is not necessary for us to givea finding in the present writ appeals.30.Therefore, on an overall consideration of all the abovenoticed factors, we are of the considered opinion that the learnedSingle Judge was perfectly correct in setting aside the selection.We do not find any ground to take a different view in the matter. Accordingly, the writ appeals are dismissed. https://hcservices.ecourts.gov.in/hcservices/

#31. In view of the dismissal of the writ appeals by confirmingthe order of the learned Single Judge, in W.P.No.13864/2008, nofurther orders are necessary in the writ petition filed by theunsuccessful candidate in W.P.No.22070/2009. Accordingly,W.P.No.22070/2009 is closed. No costs.tarSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary to Government, Ministry of Shipping, Road Transport & Highways, Transport Bhavan, No.1, Parliament Street, New Delhi 110 001.2.The Chairman, Chennai Port Trust, Chennai 1.+ 3 ccs to Mrs. S. Hemalatha, Advocate SR No.66559, 66560, 66562+ 1 cc to Mr. P.Chandrasekaran, SCGSC, SR No.66814+ 1 cc to M/s. R. Karthikeyan, Advocate SR No.66802+ 2 ccs to Mr. T. S. Rajamohan, Advocate SR No.66903KSK(CO)SR/20.9.2010 Judgment in W.A. Nos.1403, 1878/2009 &W.P.No.22070/2009