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CASE NO.: Appeal (civil)  1609 of 2008

PETITIONER: Sadananda Halo & Others

RESPONDENT: Momtaz Ali Sheikh & Others

DATE OF JUDGMENT: 27/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL No 1609 OF 2008 (Arising out of SLP (C) No.3536 of 2007) WITH  CIVIL APPEAL NO. 1614 OF 2008 (Arising out of SLP (C) No.6576 of 2007) Khagen Hazarika & Others                                        \005. Appellants         Versus The State of Assam & Others                             \005. Respondents WITH CIVIL APPEAL NO 1615 OF 2008 (Arising out of SLP (C) No.6581 of 2007) Ananda Das & Others, etc. etc.                          \005. Appellants         Versus Md. Mainul Haque Chowdhury & Others, etc. etc.  \005. Respondents WITH CIVIL APPEAL Nos. 1610-1613 OF 2008 (Arising out of SLP (C) Nos.17219-17222 of 2007) Shri Dilip Barman & Ors. etc. etc.                      \005. Appellants         Versus Md. Mainul Haque Chowdhury & Ors. etc.etc.      \005. Respondents

V.S. SIRPURKAR, J.

1.      Leave granted in Special Leave Petition (C) Nos.3536/2007,   6576/2007, 6581/2007 and 17219-17222 of 2007. 2.      The present Judgment shall dispose of all the above mentioned  Special Leave Petitions. 3.      A large number of petitioners have filed the above sets of Special  Leave Petitions challenging therein a common judgment of the Guwahati  High Court disposing of as many as 54 Writ Appeals which were filed  against the judgment and order passed by the learned Single Judge of that  High Court disposing of as many as 222 Writ Petitions.  All those 222 Writ  Petitions were disposed of by the learned Single Judge by a common  judgment.  The writ petitions pertained to the selections in a selection  process for the 5500 posts of Armed Constables which was initiated by  advertisements dated 21.8.2004.  This advertisement was based on the  separately identified vacancies for each Armed Police Battalion having its  permanent headquarters in a District.  The recruitment was to be held in 25  different centres covering each District of State of Assam for the vacancies  identified separately for that district.  As many as 2 lakh candidates took  part in the recruitment process which commenced on 3rd December, 2004  and lasted upto 11th December, 2004.  On completion of the recruitment  drive, separate select-lists for each District for the Armed Police Battalion  located in the District and the District Executive Force were prepared.   These select-lists were challenged in the above mentioned 222 writ

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petitions by nearly 3000 unsuccessful aspirants.  Later on more than 1000  selected candidates also got themselves impleaded in the writ petitions.   Initially the court sought for the records of the selection process and  ordered the same to be kept in safe custody of the Registry of the court.   This was done since the apprehensions were expressed by the Writ  Petitioners that there may be tampering of records.  A scrutiny of these  records was got done by the learned Single Judge through three Judicial  Officers who were appointed for that purpose.  A sample survey of the  records of the selected/unsuccessful candidates was done by the three  Judicial officers.  While going through the records, the learned Single  Judge considered the same District-wise and ultimately upheld the  selections in respect of 10 Districts while the selections as well as the  selection process in the other Districts were set aside and quashed.  This  gave rise to the Writ Appeals both by the State as also by the selected  candidates.  The appeals, therefore, came to be filed in respect of the  following Districts and Battalions: 1)      Dhubri 2)      Karimganj 3)      Hailakandi 4)      Cachar 5)      Sibsagar 6)      Jorhat 7)      Nagaon 8)      Darang 9)      Sonitpur 10)     Goalpara 11)     Morigaon 12)     Barpeta 13)     4th APBN, GRP, CID, SB & ACB 14)     Commando BN & Kamrup DEF 15)     10th APBN

The Division Bench allowed the appeals pertaining to (i) Karimganj District,  (ii) Hailakandi District, (iii) Commando Battalion & Kamrup DEF; and (iv)  10th AP Battalion.  The appeals pertaining to the rest of the  Districts/Battalions were dismissed.  As such the selections made in those  Districts/Battalions were also set aside as was done by the learned Single  Judge.  In the present Civil Appeals before us we are concerned with the  selections of only three Districts, they are: (i) Dhubri, (ii) Barpeta; and (iii)  Sonitpur.  Civil Appeal arising out of SLP (C) No.3536/2007 pertains to  Dhubri District, Civil Appeal arising out of SLP (C) Nos.6581 and SLP (C)  Nos.17219-17222 of 2007 pertain to Barpeta District while Civil Appeal  arising out of SLP (C) 6576 of 2007 pertains to Sonitpur District.  We will,  therefore, be limiting ourselves only in so far as those Districts are  concerned. 4.      As has been stated earlier, there were advertisements dated  21.8.2004 published in all the leading newspapers of the State which  provided the District/Battalion-wise vacancies as also the vacancies meant  for the reserved categories candidates.    The notice also provided the  further details regarding the dates and venue of the Recruitment Rally in  each District.  The minimum physical standards for male and female  candidates were also indicated therein.  The educational qualification was  8th Class passed while age limit was between 18 to 25 years as on  1.1.2004, relaxable by three years in the case of candidates belonging to  SC/ST.  10% of the vacancies were to be filled up by women candidates  while further 5% were reserved for compassionate appointments.  Under  the procedure of selection it was provided as under: "All the candidates will have to undergo test on physical  standard as stated above, if their application forms found  correct and in order in all respect.  Candidates found to have  any physical deformity duly certified by the medical officer  present in the test, shall be rejected.  Thereafter, all male  candidates will be asked to run a race of 0.60 KM and female  (sic) candidates qualified in the race shall be allowed to appear

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for subsequent test mentioned below.

(a) Physical  efficiency test  Maximum marks Qualifying  marks 1. 100 Mtrs. Race  2. High Jump 3. Long Jump (b) Personal  interview 50‘ 25 General awareness,  general knowledge  and language

Only candidates who qualify in the physical efficiency test shall  be short listed for appearing in the personal interview (viva  voce). (c)     Final selections will be made district/battalion wise on  the basis of the over all merit on physical efficiency test and  personal interview (viva voce) and reservation of quota under  RVSP Act, 1978."

One Selection Board was constituted for each District consisted of: "(1)     Superintendent of Police/Commandant (whoever is  senior \026 Chairman)’ (2)     Superintendent of Police/Commandant (whoever is  junior \026 Member) (3)     One Medical Officer (to be nominated by the Joint  Director, Health Services of the District \026 Member). In the Districts, where there is (sic) no Battalion headquarter,  the Commandant of the nearest Battalion was to be the  Chairman or Member as the case may be, to be nominated by  the DGP.  In the notification constituting the Selection Board, it  was also provided that the Selection Board shall (sic) also  consider candidates having HSLC or equivalent qualification or  above from recognized Board/University of Assam for  recruitment to District Executive Force (UB)." The guidelines were issued on 2.9.2004 for conducting recruitment tests.   As per the said guidelines, the entry of the candidates into the Recruitment  Rally was restricted to 5,000 on a single day.  The candidates were to  submit their filled in application forms to the Chairman of the Selection  Board or his representatives before participating in the elimination race.   For the male candidates, the distance of the race was 1.60 Kms. while for  the female candidates it was 0.80 Kms.  Only those candidates who could  qualify in the physical standards were permitted to participate in the  elimination race and only those who could qualify the elimination race were  to be given identity numbers after recording their Bio-Data in the prescribed  register.  Those who could qualify in the elimination race were to face the  physical test comprising of 100 meter race, high jump and long jump and  only those candidates who could secure 25 marks out of the 50 allotted for  physical efficiency test were to be called for personal interview, for which  the allotted marks were 50.  Those candidates who could qualify in the  elimination race were to get 15 marks whereas the 35 marks were reserved  for the physical efficiency  test wherein 15 marks were to be for 100 meter  race, 10 marks were for long jump and 10 marks for the high jump.  The  Recruitment Rallies were held between 3rd to 11th December, 2004 and  after completion of the entire process of selection the select-lists for each  District/Battalion were prepared.  It was, at this stage that the Writ Petition  came to be filed firstly challenging the very recruitment process and  methodology adopted. 5.      The selections were ultimately held between 7th to 11th December,

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2004.  Though, initially the candidates belonging to one particular District  could take part in the Recruitment Rallies for the posts of that District only,  afterwards the Government by its letter dated 16.11.2004 conveyed the  decision that the restrictions relating to District-wise selection of candidates  being limited to the candidates of those Districts only would not apply to the  recruitment of the Armed Police Battalion but would hold good only for the  posts advertised for the District Executive Force.   6.      In the writ petitions various challenges were made before the learned  Single Judge they were, inter alia, (i) not following the procedure in the  employment notice; (ii) non maintenance of necessary Registers; (iii)  selection of the candidates without their taking part in the selection process  or the selection of under-qualified and over-aged candidates; (iv) selection  of those candidates who could not qualify the physical tests; (v)  interpolations/tampering in the allotted marks to the candidates; (vi) political  interference in support of some of the selected candidates; (vii) allotment of  50 marks for the personal interview segment as also (ix) consideration of  huge number of candidates within a span of only 9 days.  In short the  whole selection was dubbed as farcical.  Learned Single Judge cancelled  the entire selection in respect of 15 Districts out of 26 Districts and that is  how the appeals were filed by the selected candidates as has already been  clarified by us.  Now we are concerned only with the selections of three  Districts named above.  7.      Though it was stated before us by the learned counsel appearing on  behalf of the appellants that the learned Single Judge as well as the  Division Bench had upset the selections only on the ground of non  feasibility of completing the interviews of large number of candidates in  short time and further though the learned counsel concentrated on that  factor, it would be better to take account of the general findings as regards  the selection process recorded by the learned Single Judge as well as the  Division Bench to see whether those findings would affect the selections.   10.     It was argued before the learned Single Judge that the selection  process was postponed on more than two occasions and there was an  ulterior purpose on the part of the government behind these  postponements.  It was also stated that though initially there was a  restriction of belonging to a particular District in order to be able to take part  in the selection process, such restriction was later on removed by the State  Government.  Considerable arguments seems to have been addressed on  this aspect before the learned Single Judge.  It was pointed out that initially  the selections were to be held earlier but they were postponed to 18th to  24th November, 2004 on account of the bye-elections in one of the  Assembly Constituency, further the second postponement was made to  30th November, 2004 by an order dated 2.11.2004 on account of Asian Car  Rally, Kali Puja, Diwali and Id Festivals and ultimately, the selections were  postponed to the second week of December and in the meantime the  government by its letter dated 16.11.2004 had removed the restrictions  relating to the District-wise selection of candidates being limited to the  candidates of those Districts only in cases of posts advertised for District  Executive Force.   11.     A further common contention was raised that this postponement was  politically motivated and the removal of the District restrictions was also  politically motivated and it resulted in large scale irregularities in the  selection.   12.     The next contention was regarding the distribution of marks.  It was  pointed out that 50 marks were allotted for the personal interview which  was not correct.  Lastly it was contended that the interviews were farcical in  nature and the large number of candidates could not have been  interviewed on a single day.   13.     Learned Single Judge did not give independent findings on these  contentions but chose to consider all these contentions together.  He first  fixed a benchmark of maximum 250 candidates to be interviewed on a  single day relying on certain rulings of this Court.  He also held that the  State would have to justify the allotment of 50 marks for the viva voce test.   The learned Judge also recorded that while deciding about the effect of  postponement of interviews and the removal of District restrictions, he  would consider the case of each District basing the same on the scrutiny

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made by the three judicial officers who were appointed by him to examine  the District-wise records.  In para 25 the learned Judge held: "The above discussion would now require the court to record  what has been revealed by the scrutiny of the records that had  been undertaken by the court and the conclusions that the  court considers prudent to reach on that basis.  It would not  only be convenient but also imperative for the court to proceed  in the matter district/centre-wise as each selection has to be  construed as a separate and independent selection.  What,  however, must be emphasized, at this stage, before embarking  upon the necessary discussions is that the records of each  district have been scrutinized by the court only to determine  the fairness of the exercise performed while subjecting the  huge number of candidates to the different stages of the  selection process.  The court has not, even remotely, been  concerned with the marks awarded to any particular candidate;  no attempt has been made to evaluate the standards reached  by the candidate at any of the stages of the selection process.   It is broad and general impression of the selection process that  has been attempted to be reached by the court on the basis of  the records scrutinized and not a minute and microscopic  examination of the selection process.  Again, it must be  emphasized that the scrutiny of the records has been made on  a representative basis, as already indicated in the opening part  of the present judgment and the conclusions as will be reached  and recorded is by a process of correlation of the result of the  sample scrutiny with the rest of the cases constituting the  general trend.  This, the court understands to be the only  pragmatic manner of resolution of the dispute involving the  selection of nearly 5500 constables from a total of over 2 lakh  job seekers." (Emphasis Supplied)

We do not, however, find concrete findings having been given on the  general submissions.  Before taking up this exercise the learned Single  Judge seems to have rejected, though indirectly, the objection raised by  the State that having taken part in the selection process, the unsuccessful  candidates could not have complained about the postponement of the  selection process nor could they question the correctness thereof after  being declared unsuccessful in the same.  Though the substantial case law  has been quoted by the learned Single Judge, the learned Judge relying on  Raj Kumar & Ors. v. Shakti Raj & Ors. [(1997) 9 SCC 527] went on to  hold: "In such circumstances, the court is of the view that in the facts  of the present case it would not be correct to refuse an  adjudication of the merits of the dispute raised by the  petitioners."

The learned Judge also observed that considering the enormousness of  the selection process, the court would have to uphold its adjudicatory  mechanism to protect the inherent requirement of fairness in the  administrative process and rule of law on the basis of "Basic Pleadings"  thereby indicating his satisfaction about the pleadings in the writ petitions  which were fiercely opposed by the State on the ground of absence of  proper pleadings.  Further, the learned Judge justified the interference  though the writ petitions were filed by unsuccessful candidates who had  participated in selection process without demur.  Similar view as taken  regarding allotment of 50% marks to personal interview.  The learned  Judge decided to depend on the Scrutiny Committee’s reports on allotment  of marks to see whether the marks were awarded excessively. 14.     When we see the District-wise approach by the learned Single  Judge, it is apparent that in so far as Golaghat District (with which we are  not concerned) is concerned, the 50 marks allotted for viva voce were  further bifurcated in the following manner: "1.     Educational Qualification                       5 marks 2.      Smartness, general ambience             5 marks

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3.      Language, reading and writing           10 marks 4.      Extra Qualifications                    5 marks 5.      Proficiency in sports, marshal arts     5 marks 6.      General knowledge and oral test 20 marks"

It was argued before us on behalf of the Government that this was normally  the pattern of interviews practically in all the Districts as the guidelines  were fixed for the purpose of interviews (viva-voce) in the similar fashion  commonly for all the Districts.  This was not contradicted before us and  indeed it cannot be, for the simple reason that it would only be the State  which could be in a position to address as to the standards fixed for the  purposes of viva-voce (presuming that they were so fixed). 15.     As regards Barpeta District, the learned Single Judge found that the  register of candidates of Barpeta was maintained only from the stage of  completion of the elimination race wherein 5540 candidates had qualified.   All of them were allowed to take the physical test.  The learned Judge then  deduced that 5540 candidates were interviewed in a span of 9 days.  He,  therefore, came to the conclusion that the average number of candidates  on each day was much more than the benchmark of 250 which he had  fixed.  He also recorded that one Minister had made written request in  respect of 43 candidates but out of them only 19 were selected.  However,  the learned Judge did remark that the marks secured by most of the  aforementioned 19 candidates did not reflect award of any abnormally high  marks in the viva voce test.  The learned Judge then recorded: "\005.yet having regard to the very fragile nature of the viva voce  segment of the selection on account of the participation of over  5500 candidates therein, I am of the view that the just and  proper conclusion that must be reached in the totality of the  facts of the case is that the selections held in Barpeta District  should receive this Court’s interference.  Accordingly, the said  selections are set aside."

16.     As regards Dhubri District, the learned Single Judge noted that as  many as 117 posts were advertised and 3722 candidates competed for the  same after being qualified for the physical test.  The learned Judge then  noted, as per the report of the Amicus Curaie, that all the selected  candidates had got high marks in viva voce ranging between 30 to 41 out  of 50 marks.  The learned Judge did not find fault with the application forms  of the selected candidates which were duly initialed by the concerned  officers nor did he find fault with the procedure adopted.  However, the  learned Judge noted that the number of candidates who were interviewed  during 9 days was a "high disturbing factor" as also the award of high  marks in the viva voce to the selected candidates which has an isolated  feature by itself which could assume significance.  It is only on this material  that the whole selection was set aside. 17.     Lastly in respect of Sonitpur District, the learned Judge found that for  414 posts advertised, 12,433 candidates had applied, out of which 5399  candidates were found qualified for the viva voce and all of them were also  interviewed.  According to the learned Judge this by itself would be a  deciding factor considering that over 500 candidates had been interviewed  per day.  The learned Judge did note on the basis of the report of the  amicus curaie that no discrepancy in award of marks in the physical test  and award of uniform marks in the viva-voce vis-‘-vis written test was  noticed.  Here, however, the learned Judge chose to disagree with the  views expressed by the amicus curaie and very interestingly observed: "Though the marks obtained by the candidates in the different  segments of the physical test have been noted in a tabulation/  compilation sheet, the entries therein are not supported by the  contemporaneous records.  There are instances of a large  number of candidates who had fared well in the physical test  but have scored low marks in the interview/viva voce."

The learned Judge also gave example of two selected candidates being  under-age.  It is on this basis that the selection of Sonitpur District was set  aside.

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18.     When the matters reached the Division Bench, the Division Bench  firstly noted the findings of the learned Single Judge on the general issues.   It also noted that representative notice was issued inviting the affected  parties, i.e., selected candidates to the proceedings before the learned  Single Judge.  The Division Bench also noted the method of random  scrutiny of the selections in 26 Districts/Battalions by the Scrutiny  Committee. 19.     It was argued generally before the Division Bench that the learned  Single Judge could not have set aside the selections on the basis of the  reports of the Scrutiny Committee which were, admittedly, the sample and  partial scrutiny.  Even during the arguments before the Division Bench no  opportunity was given to the counsel for the appellants to examine the  materials on record and also to take the copies thereof enabling them to  support the selection of the candidates.  Regarding the aspect of non  joining of proper parties, i.e. selected candidates to the writ petition, the  Division Bench noted the general notice directed to be issued through  publication by the Single Judge by his order dated 6.10.2005.  The Division  Bench further noted in para 18 that the notice so published was vague as it  did not mention the case numbers, districts, selection centres, etc.  It also  noted the arguments of the appellants that though applications were made  by the selected candidates for impleadment in the related writ proceedings  and though a direction was prayed for supply of copies of the writ petition,  the learned Single Judge did not pass any order and the copies of the writ  petition became available to the appellants only on 23.11.2005 and they  had to file their Reply Affidavits even without knowing the contents of the  writ petition.  The Division Bench also noted the further arguments that the  writ petitions themselves were vaguely drafted.  It was, therefore, argued  that the selected candidates were denied a fair and reasonable opportunity  of projecting their cases resulting in violation of principles of natural justice.   It was pointed out that even at the time of fixing the writ petition for hearing  on 8.11.2005, the selected candidates were, admittedly, not impleaded as  parties and the proceedings, therefore, suffered from serious procedural  lapse.  It was further argued that the learned Single Judge also fell in error  in directing the selected candidates to file the appropriate affidavits even  without either impleading them or ensuring that the copies of the writ  petitions were served on them.  It was also pointed out that the reports  prepared by Amicus Curaie and the three judicial officers on the basis of  the sample scrutiny made by them were not made available to the selected  candidates and, therefore, the learned Single Judge erred entirely in relying  on those Scrutiny Reports. 20.     Per contra, the submissions made on behalf of the appellants were  opposed by the writ petitioners and it was reiterated that no prejudice was  caused to the selected candidates and no such grievance was made  before the learned Single Judge.  It was reiterated that the selection of any  particular individual or individuals was not impugned but the whole  selection process was found faulty.   21.     The Division Bench noted its own earlier order dated 4.10.2005  whereby the earlier appeals were disposed of and a further direction was  given that the parties were at liberty to take recourse to provisions of Order  1 Rule 10 as also the other provisions in the CPC and the issue was left  open to the learned Single Judge to direct publication of notice in  newspapers so that the interested parties could appear in the proceedings  if they so desire.  The Division Bench in para 27 of its judgment noted  about such notice having been published in the leading newspapers of  Assam as also the order passed by the learned Single Judge to publish the  list of selected candidates on or before 19.10.2005.  It also noted that on  8.11.2005, the learned Single Judge had found that in the notice of  proceedings published in the issue dated 19.10.2005 of the local daily  Assam Tribune, the date of hearing had not been mentioned and,  therefore, the date of hearing was directed to be published in daily  "Asomiya Pratidin" to be 17.11.2005.  The Division Bench also noted the  subsequent orders passed by the learned Single Judge allowing the  impleadment which began after the second week of November, 2005 and  continued upto the last week of November, 2005 during which the hearing  also took place and the judgment ultimately came to be delivered on

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12.12.2005.  The Division Bench further held that all the selected  candidates had been duly heard on relevant aspects of controversy and  that they had expressed no grievance regarding the non impleadment or  delayed impleadment or refusal of copies though prayed and applied for  and as such they had waived their objections.  In para 30 it was argued  that: "They obviously chanced favourable decision without any  reservation in this regard and thus had waived any objection  on the above counts.  On this consideration alone their present  turn around apparently lacks bonafide.  In view of their  omission to point out to the learned Single Judge the factum of  non receipt of the copies of the writ petition and non  impleadment in the proceedings during the pendency thereof,  they are now estopped from raising these pleas of this point of  time.".

22.     The Division Bench in para 32 observed that no prayer was made by  any parties seeking a copy of the reports of the Amicus curaie or of the  judicial officers assisting the court in the inspection of the records.  It,  therefore, recorded a finding to the effect that: "\005.we do not feel persuaded to sustain the cavil of the  appellants bearing on denial of opportunity of effective and  meaningful participation in the proceedings to their prejudice."

In paras 35 to 43 of its Judgment, the Division Bench took note of the  following cases: i)      General Medical Council v. Spackman [1943 AC 627] ii)     Taylor v. National Union of Seaman [(1967) 1 WLR 532] iii)    Garland v. British Rail Engineering Ltd. [(1969) 1 WLP  1041, iv)     Walter Annamunthodo vs. Oilfields Workers’ Trade Union  [1961 SE 945] v)      Chief Constable of the North Wales Police vs. Evans  [(1982) 1 WLR 1155,  vi)     B. Surinder Singh Kanda v. Government of the Federation  of Malaya [(1962) AC 322] vii)    Hadmor Products Ltd. & Ors. v. Hamilton and another  [(1983) AC 191] viii)   Canara Bank and others v. Debasis Das and others [(2003)  4 SCC 557]. All the above decisions were distinguished in para 44 on the ground that  foundational facts were different.  The Division Bench held: "The requirement of adherence to the exigency of the fair  procedure notwithstanding the attendant facts do not buttress  the appellants plea based thereon.  Additionally, while in those  cases, the adjudicative process pertained to issues concerning  individuals, the scrutiny in the instant case relates to a  mammoth exercise of appointment to 5486 posts in public  service."

It ultimately held that the deficiency in the pleadings on the grounds of  challenge, if any, in the writ petitions in the above premise cannot be  construed to  be fatal.  It further held that by the same analogy in view of  the unqualified participation of the selected candidates in the proceedings,  their plea of non impleadment therein and denial of the copies of the writ  petitions does not merit acceptance.   The Division Bench further condoned  the non passing of the individual orders on the impleadment applications  and recorded its findings in para 46 to the following effect: "On an overall consideration of the emerging facts and the  documents on record, we are of the unhesitant opinion that the  procedure adopted by the learned Single Judge in conducting  the proceedings is not in derogation of the established  principle of natural justice and fairness in judicial  determination.  This plea, therefore, fails."

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The Division Bench then referred to the exercise undertaken between  21.9.2006 and 16.10.2006 pertaining to the examination of the records by  the Bench in presence of the counsel for the parties.  It further noted that  no objections were raised by the counsel.  The Division Bench ultimately  held in para 48 as under: "In the above premise, the learned counsel for the parties  having been afforded all reasonable opportunities of  consulting the records and highlighting grievances, if any on  the issues of impleadment, non supply of copies of the writ  petition etc., in course of the hearing of the appeals and they  having chosen not to avail the same, the plea of want of  fairness is of no consequence on this ground as well."

23.     In para 52 the Appellate Court raised the question as to what should  be the ideal number of candidates who could reasonably and practically be  interviewed on a day.  The Division Bench observed that this question  would have to be considered in the context of large number of candidates  as high as more than 2,000 on a single day vis-‘-vis the candidates within  the benchmark adopted by the learned Single Judge (250 per day).  State’s  affidavit was referred to and it was noted in para 53 that even therefrom it  is apparent that at best 8 hours on a day could be utilized for the interview.   Though it was claimed by the State that the interviews at times were taken  spending 8 to 15 hours a day.  It was held that if 15 hours are spent in a  day, it would not be reasonably practicable and that by itself may lead to  the inference of a farcical selection.  After extensively quoting from the  circular letter No.3 \026 Police dated 3rd May, 1971 issued by IGP, Assam  regarding the policy with regard to recruitment of the rank of Constables,  the Division Bench observed in para 56 that "while good physique and  bearing cannot be sacrificed, at the same time, the mental caliber for  recruitment to the constabulary cannot be compromised".  The Division  Bench then endorsed: "Although an argument was advanced that provision for 50%  marks for interview was in the higher side giving scope for  maneuvering the selection, but the learned Single Judge on  an overall consideration of the matter has come to the  conclusion that prescription of 50% marks for the interview is  acceptable."

In the same para it went on to observe: "To judge a candidate on his mental faculties, alertness,  general knowledge, general bearing and knowledge of  language, etc., some amount of interaction with the candidate  by the members of the Selection Board will be always  required and it cannot be an affair of some moments and,  therefore, there was a necessity to fix the number probable  candidates who could be interviewed effectively in a day  within the hours indicated in the affidavits which hours also  could not be at a stretch but had to be with intervals of tea  breaks, lunch breaks, etc."   

The Division Bench then proceeded to decide as to how many  candidates could be interviewed in a day.  The Division Bench then took  stock   of   the  reported  decision  in   Satpal & Ors.  v.  State  of    Haryana & Ors.   [(1995)  Suppl.  1  SCC  206],    Ashok Kumar      Yadav v. State of Haryana [(1985) 4 SCC 417] argued on behalf of the  writ petitioners as also noted the law laid down in Sardara Singh v. State  of Punjab [(1991) 4 SCC 555] and came to the conclusion on the basis of  the law laid down in the above mentioned cases that the claim of three  minutes per candidate, as was accepted in Sardara Singh’s case was not  feasible and in the present case minimum five minutes will be required for

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the realistic appraisal of the candidate.  If that was done then the interview  of 300 candidates would require 15 hours.  Ultimately, the Division Bench  recorded a finding that the learned Single Judge had correctly fixed  benchmark of 250 candidates to be interviewed in a day and at times it  could even be stretched to 300 candidates a day.  It was on this basis, the  Division Bench then proceeded to examine the individual District and found  fault with the selection process in Dhubri, Barpeta and Sonitpur Districts on  the ground that the candidates interviewed were more than the benchmark  fixed and also noted other alleged irregularities in the matter and  proceeded to set aside the selection in those three Districts. 24.     We have already indicated above that we are concerned with the  above mentioned three Districts only.  We will, therefore, consider the  selection process in these three Districts in the light of the observations  made by the learned Single Judge as also the Division Bench in the  appeals.  But before that we must take stock of the arguments by the  learned counsel on behalf of the appellant as also the arguments by the  State which though has not filed appeal, has chosen to support the  appellants for the obvious reasons as also the other concerned parties. 25.     We have deliberately referred to the findings of the learned Single  Judge as well as the Division Bench as we are convinced from those  findings that the only ground on which the selections were set aside was  the factual situation that the number of candidates interviewed were  enormous and as such the personal interview and more particularly the  viva-voce was a farce, having been completed only by way of a formality  due to the shortage of time and hence the selections made on the basis of  farcical viva voce could not answer the test of objectivity and  reasonableness. 26.     However, since the courts below referred to the other defects in the  selection process, we would take a stock of those findings.  It was firstly  urged by way of a complaint against these interviews that the dates were  changed and that was done in order to meet the political goals on the part  of some leaders.  We do not think that this complaint was justified. Firstly  there were no proper pleadings with the necessary details before the  learned Single Judge.  Secondly how the postponements affected the  selection process is nowhere displayed and further which political leaders  were responsible for such postponements of the interview dates had also  not been pleaded.  On the other hand it was found from the records that  the postponement were on account of Asian Car Rally, Kali Puja, Diwali  and Id festivals.  If that was so, we do not find any reason to hold against  the selection process and indeed though we find some murmur in the  judgments appealed against, we do not see any definite finding that such  postponements affected the selection process.  The very fact that there  was a huge turn out in each District suggests the hollowness of the claim  that the selection process was affected because of the postponements.   We, therefore, do not think that anything was wrong in postponing the  interview dates.  Similarly, we are also not impressed with the complaint  that the District-wise restrictions were removed by the Government by its  letter dated 16.11.2004 apart from the fact that both the courts have not  commented on this aspect adversely against the selection process.  We  are of the opinion that, that by itself cannot be a reason to find fault with the  selection process, again on the ground that the petitioners were not able to  show as to what prejudice was caused because of the removal of such  step taken by the Government on 16.11.2004.  On the other hand we are of  the clear opinion that the Government had made the selection process  broader by removing the District-wise restrictions.  As regards, the  complaint that 50 marks were allotted for the personal interview or viva  voce, the learned Single Judge as well as the Division Bench have found  that in the peculiar circumstances it was of no consequence.  We also  endorse this view as no arguments were addressed on this point before us.   Therefore, even that complaint has to go.  In the earlier part of this  judgment we have already noted that these 50 marks were also distributed  on as many as six factors and each factor had separate marks.  The oral  test, after the distribution of the marks over the factors like educational  qualifications, smartness, general ambience in reading, writing, extra  qualifications, proficiency in sports and martial arts, is only left with 20

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marks which, in our opinion, is quite reasonable.  We do not, therefore, find  anything wrong on account of the allotment of 50 marks for viva voce.  This  is apart from the fact that the unsuccessful candidates, after having taken  part in the interview process could not turn back and call names to the  system. 27.     We are, therefore, left with only one major contention regarding the  enormousness of the number of candidates interviewed and the possible  inability on the part of the interview board to complete the interviews in a  proper manner.  We would, therefore, proceed to consider this aspect in  detail. 28.     The basis of the contention regarding this factor made by the writ  petitioners was the paucity of time.  Based on the factors like the available  time, the general requirements for assessing an individual candidate for the  post of Constable, the number of persons available for holding the  interviews, the leaned Single Judge had come to a finding that every Board  on one day could, at the most, interview 250 candidates.  The Division  Bench also seems to have endorsed this view.  We have very carefully  examined the contentions raised by the appellant herein and also the  material provided by the State through its counter affidavits as also the plea  raised by the officers who actually held the interviews in respect of the  concerned three Districts of Dhubri, Barpeta and Sonitpur.  But before we  go into the exercise of considering the situation in these three Districts  individually, we must consider the benchmark fixed by the learned Judge at  250 candidates per day.  We are afraid we cannot uphold that finding.   Learned Single Judge as well as the Division Bench seem to have  proceeded more on imagination than the reality.  Such a benchmark could  not have been fixed generally and only because that benchmark was  allegedly breached, the selection could not have been found fault with in a  mechanical and mathematical manner.  Instead of testing the matter on the  basis of the ground realities for each District on the basis of material made  available by the State, a mechanical approach, in our opinion, could not  have been taken by the High Court.   29.     The Courts below seems to have relied upon Satpal’s case (supra).   That was a case regarding the selection of Patwaris who obviously have a  entirely different and more onerous duties than those of the constables in  police.  A Patwari is a basic Revenue Officer in the village and has to  maintain the revenue records.  In para 6 this Court observed that: "\005Even if one were to  assume that the committee devoted  as many as 12 hours i.e. from 9.00 a.m. to 9.00 p.m. on a  single day for interviewing candidates it would not be able to  devote more than two minutes’ time per candidate."

It was on the above basis that it was found that it was impossible for the  authorities to conduct the interviews of as many as 400-600 candidates in a  single day.  The Court also observed, considering the shortest time  available to interview, that: "It is difficult to hold that the interviews were meaningful and  purposive to enable proper assessment of the knowledge and  suitability of each candidate for the post".   

In our opinion these observations would be most apposite in respect of the  selection of a Patwari who is required to have the knowledge regarding the  records, etc.  Such is certainly not the requirement for the constables. 30.     In Ashok Kumar Yadav’s case (supra) this question did not come.   That was a case more particularly of bias.  Aspersions on character,  integrity and competence of Chairman and members of State Public  Service Commission were made in that case.  At any rate the interviews  held in that case were for the selection to the Judicial Service and,  therefore, the nature of the interview was entirely different.   31,     However, in Sardara Singh’s case (supra), this Court specifically  observed in para 6: "\005The selection is for the Patwaris in the class III service.   The ratio in Ashok Kumar Yadav v. State of Haryana [(1985)  4 SCC 417] has no application to the facts in the case.   Therein the selection was to the Class I service of the State

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Service and sufficient time was required to interview each  candidate.  In this case, on calculation, we found that on an  average three minutes were spent for each candidate for  selection.  Rule 7 of the Rules provides the qualifications,  namely, pass in the Matriculation or Higher Secondary  Examination; knowledge in Hindi and Punjabi upto the Middle  Standard and good knowledge of rural economy and culture.   The educational qualifications are apparent from record and  need no interview in this regard.  It could be seen that  candidates normally hailing from rural backgrounds had  presumptively good knowledge of rural economy and culture.   Therefore, there is no need for special emphasis to ascertain  their knowledge of the rural economy or culture.  Under those  circumstances much time need not be spent on each  candidate for selection except asking some questions on  general knowledge and aptitude for work as Patwari etc."

The observations are extremely telling and need no further elaboration.  In  the present case the qualifications were known.  The physical standards of  each candidate were very much there before the interviewing board and,  therefore, in our opinion, there was no necessity to test the knowledge of  maintenance of revenue records, rural economy and culture as was  required for the post of Patwari.  The merits of the candidates were also  recorded regarding their physical efficiency.   Therefore, even less than  three minutes time was enough for each candidate.  We would also have to  give due credit to the expertise of Selection Committee. 32.     The question of large number of candidates appearing for the  selection process again came up before this Court in Joginder Singh and  others v. Roshan Lal and others [(2002) 9 SCC 765].  A complaint was  made in this case that 323 candidates appeared for the test in two days  and on that basis a select list was prepared by the Departmental Promotion  Committee.  The High Court called this selection process as a farce on the  ground that fair chance was never given to the candidates to show their  worth.  The Court observed in para 5 as under: "On the facts on record we see no justification for the High  Court to have come to this conclusion.  The High Court in  exercise of its jurisdiction under Article 226 of the Constitution  is not supposed to act as an Appellate Authority over the  decision of the Departmental Selection Committee.  If the  Committee has been properly constituted, as in this case, and  the post is advertised and a selection process known to law  which is fair to all, is followed then the High Court could have  no jurisdiction to go into a question whether the Department  Selection Committee conducted the test properly or not when  there is no allegation of malafides or bias against any member  of the Committee.  Merely because there were a large number  of candidates who appeared on two days, cannot ipso facto  lead to the conclusion that the process of selection was a farce  and fair chance was not given.  Normally experienced persons  are appointed as members of the Selection Committee and  how much time should be spent with a candidate would vary  from person to person.  Merely because only two days were  spent in conducting the interviews for the selection of Class IV  posts cannot lead to the conclusion that the process of  selection was not proper."

33.     To sum up, these were the interviews for the post of Constables and  the minimum educational standard was prescribed as 7th class pass.   There were no requirements of testing the administrative or management  capacity of the candidates and/or any other quality which is required for the  higher posts.  All that was necessary was firstly to see their physical fitness  in terms of physical endurance, their smartness in appearance and further  to test their intelligence level as required for the post of constable including  their general knowledge.  We cannot ignore that thousands of candidates  had turned up and what we find from the guidelines was, firstly these

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candidates had to fulfil physical standards in terms of height, etc., as also  the minimum educational qualification.  Obviously all the candidates could  not have had those physical standards.  It is apparent from the records that  the task of conducting measurement for fixing the physical standards was  distributed on all the centres amongst number of other helping staff.  Once  they crossed this barrier of physical standards and minimum educational  qualification as also the race of 1.60 kms. in the case of men and 0.80 in  the case of women, they were to proceed for the further physical tests.   This exercise, in our opinion, was not as time consuming and could have  been done collectively also for the simple reason that every candidate was  not asked to run the race individually. That would certainly be a team event  where several candidates could run at the same time in group.  To  complete the race in a particular time could not, in our opinion, require  hours together.  The subsequent physical test of high jump, long jump and  sprint of 100 mtrs., etc., would be restricted only to those candidates who  had successfully met their physical standards and educational  qualifications and their number would definitely reduce.  The further  filtration for the viva voce test was more substantial as the number of  candidates who could pass the exacting standards in high jump, long jump  and the sprint could not have been more.  It is at this stage that the  remaining candidates were interviewed for their viva voce.  This is apart  from the fact that the courts below did not have any tangible evidence  regarding the interviews being farcical except the self-serving statement  made by the unsuccessful candidates in the writ petitions.  The learned  Judges even did not have the reasons for which the unsuccessful  candidates were rejected.  We, therefore, do not see any reason as to how  a concrete finding could have been given that the selection board could  interview only 250 candidates per day and not more.   34.     Once this barrier is cleared, the mechanical test adopted by the  learned Single Judge and the Division Bench must go and the matters  would have to be decided on the basis of the ground realities as presented  before us. DHUBRI DISTRICT 35.     Our attention was invited by the learned Senior Counsel Shri Rajiv  Dutt to the counter affidavit filed by the State in respect of the selections  made in District Dhubri.  The counter is supported by the affidavit of Shri  Joydip Shukla, Extra Assistant Commissioner which suggests that a Board  was constituted under the Chairmanship of Shri P.K. Dutta, Superintendent  of Police, Dhubri, Shri N. Borah, APS, Asstt. Commandant 20th IR  Battalion, Panbari and Dr.N. Amin, Senior Medical & Health Officer, Dhubri.   They were to execute the task as per the Notification No.FB/1/98/2004/1  dated 21.8.2004.  The said notification dated 21.8.2004 is on record.  The  affidavit further suggests that a meeting was held on 20th October, 2004 in  connection with the Recruitment Rally for the post of constables wherein it  was decided to constitute sub-committees and accordingly the sub- committees were constituted including interview board for the post of viva  voce test.  The affidavit goes on to say that since there were large number  of candidates, it was impossible for a single interview board to complete  the interviews and, therefore, four tables for interviewing the candidates  were arranged and each table was to be headed by a Gazetted Officer who  was explained the modalities of the interview.  The names of the four  Gazetted Officers, heading the interview panel on each table, were (i) Shri  P.K. Dutta, APS, Superintendent of Police, Dhubri, Chairman of the Board;  (ii) Shri N. Borah, Asstt. Commandant, 20th IR Battalion, Panari, Member;  (iii) Shri A.K. Bose, APS, Dy. Superintendent of Police (DSB), Dhubri; (iv)  Shri R.C. Medhi, APS, Asstt. Commandant, 20th I.R. Battalion, Panbari.   The affidavit also goes on to say that a board which has already been  referred to earlier for final selections was also constituted consisting of Shri  P.K. Dutta, Shri N. Borah and Dr.N. Amin.  It is suggested that the  guidelines dated 2.9.2004 were issued prescribing the procedure to be  followed during the Recruitment Rally which was issued by the State- respondents and it is further asserted that the said guidelines were strictly  adhered to.  The affidavit further goes on to suggest that the process of  interview was started at 8.00 a.m. and continued till late in the day.   However, the viva voce tests slated for 4th and 5th December, were

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continued on the following days, i.e., on 5th and 6th December, 20004 and  the number of candidates selected for viva voce test were barely 601 on 4th  December and 1068 for 5th December.  It is asserted that the candidates  were interviewed by each table of Interview Board.  It is then pointed out  that after conducting the interviews for 3722 candidates for a period of nine  days, ultimately 178 candidates were selected for appointment out of which  85 vacancies were for the post of constable in the District of Dhubri and 93  in the 20th I.R. Battalion and the final selection list was affixed on the Notice  Board on 3.2.2005.  It is in this manner, that the interviews were held in  Dhubri.  It is seen from the minutes of the meeting dated 20th October,  2004 that it was attended by as many as 23 personnel and in that the  whole procedure for holding the interviews was finalized by creating a  Reception Counter, then holding the elimination race, then the  documentation, the physical test and ultimately the viva voce.  The detailed  chart suggests that as many as 22 Reporting Centres were created for  which different officers were appointed; two constables were to act as the  escorts of the candidates, while as many as 26 persons were engaged for  holding the elimination race; for documentation as many as 93 personnel  were named even for the subsequent events of physical test, long jump six  personnel were appointed, for high jump 9 personnel were appointed and  for 100 meters sprint further 9 personnel were appointed.  Ultimately for  viva voce 2 personnel were named being Shri P.K. Datta and Shri A.K.  Bose, both APS Officers.  Not only this, the standard marks to be given for  the physical tests and even the basic minimum standard accepted is also  seen from Annexures A and B from the chart.  This suggests the  systematic way in which the whole interview process went on in Dhubri. 36.     Learned Single Judge in his judgment has observed that as per the  report of the Amicus Curaie the selected candidates got higher marks in  viva voce ranging between 30 to 41 marks.  In our opinion this has hardly  any effect and merely because the selected candidates got the higher  marks ranging between 30 to 41 marks that by itself could be no reason to  reject the selection.  We have extensively referred to the comments made  by the learned Single Judge in the earlier part of the judgment where the  learned Judge has in fact recorded his satisfaction for the printed charts  and more particularly about their authenticity.  The learned Judge had also  expressed his satisfaction with the procedure adopted.  There is hardly any  reason given by the learned Single Judger excepting that the benchmark of  250 candidates had already been crossed.   37.     The treatment given by the Division Bench is no different.  The  Division Bench has also gone by the mechanical test of benchmark of 250  candidates.  The Division Bench seems to have taken an exception to the  proceedings dated 4.12.2004 and 5.12.2004.  That is by far the only reason  given by the Division Bench for upholding the finding of the Single Judge.   No court has, however, considered the ground realities which we have  already shown as per the counter affidavit which has remained  uncontroverted before us.  We are, therefore, convinced that the only  reason given by the courts below could not be said to be a deciding factor  for setting aside the selection.   

BARPETA DISTRICT 38.     The story regarding Barpeta District does not appear to be any  different.  Shri Dholakia, Senior Counsel took us through the counter  affidavit filed on behalf of the State wherefrom it is apparent that a  Selection Board was constituted for Barpeta District consisting of one Shri  B.B. Chetry, APS, the then Superintendent of Police, Barpeta District as its  Chairman and Shri D. Upadhaya, APS, the then Commandant, 4th APTF  Bn., Barpet District as its Member.  The affidavit further goes on to suggest  the names of the members of the sub-committees for conducting the  elimination race and for other events.  In so far as elimination race is  concerned, two police personnel, namely, ABSI Pramod Das and Hav.  Clerk Altaf Hussain were appointed.  As for documentation and  measurement a team of 13 personnel was named so also for 100 meters  race, long jump and high jump, there appears to be a team of two  personnel each.  It is then asserted that in all 5540 candidates appeared

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between 3rd December to 8th December and interviews were started at 6.30  a.m. and lasted till 8.30 p.m. giving clean 14 hours to the Selection  Committee.  It is pointed out that out of 5540 candidates 1815 candidates  were selected on being eligible/physically fit to appear for viva voce.  It is  then pointed out that candidates who were left out of the viva voce test due  to shortage of time on the date of selection were called on 9.12.2004 and  10.12.2004 also.  It is asserted that this fact was reflected on the Police  Radiogram dated 5.12.2004 and 10.12.2004 and only the selected  candidates were called to appear for personal interview on the dates fixed  for that purpose.  These fixed dates were on 3rd, 4th, 5th, 6th and 7th  December, 2004 and as has already been submitted 9th and 10th  December, 2004.  It is very frankly contended in the counter affidavit that  those who were left out due to paucity of time, were called on 9th and 10th  December, 2004.  The counter also goes on to explain that the interview  board was alive to the considerations required for selection for the post of  constables and as such it was sufficient to test the candidates on the basis  of their physical capability and agility.  It is then contended that in viva voce  random questions were put to the candidates considering the time  constraints to ascertain their minimum intelligence level which a constable  is required to possess.  The copies of the documents like the Memo dated  2.12.2004, Memo dated 3.9.2005, Police Radiograms dated 5.12.2004 and  10.12.2004 are annexed to the counter affidavit which go on to suggest the  genuineness of the claim by the State Government supporting the  selections.   39.     Shri Dholakia painstakingly took us through the judgments of the  learned Single Judge as well as the Division Bench.  The learned Single  Judge seems to have gone by the simple mathematical rule of dividing  5540 candidates by 9 since the interview process lasted for 9 days.  He  seems to have relied on the rule of average.  There was one peculiar  finding that as per the report of the amicus curaie a complaint was made  that some candidates were selected at the written request of a Minister.   The amicus curaie had initially reported that the number of such candidates  is three out of total 210 candidates selected.  At the hearing, however, the  amicus curaie claimed that the said written request was in respect of 43  candidates out of whom 19 candidates have been selected.  The learned  Single Judge has, however, candidly held that the marks given by the 19  candidates do not reflect award of any abnormally high marks in the viva  voce test.  All that the learned Judge has recorded is that having regard to  the "fragile nature of the selection" it would be just and proper conclusion to  set aside the selections made in Barpeta.  We are not at all satisfied with  this kind of general and casual remarks.  This is apart from the fact that  there is nothing to suggest that in reality any recommendations were made. 40.     The story of the Division Bench is again no different.  The Division  Bench has given the daily break up of the candidates interviewed on each  day and without making any distinction, has proceeded to hold that merely  because the number of candidates exceeded on particular days, the said  "benchmark", the selection was bad.  We are not convinced with this.

SONITPUR DISTRICT 41.     As regards Sonitpur District also the counter suggests that there was  a Selection Board consisting of Shri Nitul Gogoi, APS, Superintendent of  Police, Sonitpur, Tezpur as its Chairman, Shri Dwijendra Nath Sarma, APS  Asst. Commandant, 12th AP Bn., Jamugurihat as its Member and Dr.(Mrs.)  Dipti Baruah, Senior Medical & Health Officer, Biswanath Chariali PHC as  its Member.  As in the other counters, the minutes of the pre-selection  meeting in this case held on 30th November, 2004 have been referred to.   Figures which are given are that out of 12,433 candidates 4319 were only  found to be qualified and appeared for the interview.  It is pointed out that  on 3rd December, 2004 out of 1365 candidates 489 candidates only  qualified and appeared for viva voce and medical test.  The number given  on the other dates are that on 4th December 757 out of 1676 candidates;  on 5th December 558 out of 1602 candidates; on 6th December 602 out of  1892 candidates; on 7th December 473 out of 1081 candidates; on 8th  December 1175 out of 2169 candidates; on 9th December 536 out of 1066  candidates ; on 10th December 709 out of 1192 candidates and on 11th

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December 91 out of 391 candidates came for the interviews after passing  preliminary rounds.  A clear cut assertion is made that the candidates  appearing for viva voce were only those who had passed the physical test.   It is pointed out further that more credence was given to the physical  fitness and the agility of the candidates since that was the main essence to  discharge the duties of a constable.  Again it is asserted that random  questions were put to the candidates in viva voce so as to ascertain their  minimum intelligence level.  The documents explaining the counter seem to  support the said facts.  Learned counsel heavily relied on Annexure R-3,  the Minutes of the meeting dated 30.11.2004 as also the Minutes of the  meeting held on 3.2.2005.   42.     Learned Single Judge has hardly given any reasons and has  recorded that a large number of candidates who were failed in physical test  were being given low marks in the interview.  Two examples have been  given of one Mridul Bora and Diganta Das who were under-age but were  selected.  We have nothing to say about these two selections and if they  were not within the proper age limit, the learned Judge was undoubtedly  right in setting aside their selection.  But that could not be a reason by itself  to set aside the whole selection of more than 400 candidates.  There is  absolutely no reference to any ground facts and the learned Judge seems  to have relied wholly on the views expressed by the Amicus Curaie.  A  curious statement has been made to the following effect: "Though the marks obtained by the candidates in the different  segments of the physical test have been noted in a  tabulation/compilation sheet, the entries therein are not  supported by the contemporaneous records."

We wonder as to what such contemporaneous record could be.  Anyway,  the only reason appears to have been weighed with the learned Single  Judge was the crossing of the benchmark of 250 candidates. 43.     The treatment of the Division Bench is identical.   The Division Bench  has found out a pattern in selection and commented that the candidates  who secured higher marks in the physical test, i.e., above 40 and upto 46,  were awarded abnormally low marks i.e., marks ranging from 7 to 20 and  thereby these candidates were ousted from consideration.  The marks  were found to be over-written/interpolated in respect of all the candidates  and not a single instance was found free from such impairment.  The  Division Bench has given few examples in para 153 where the marks were  substantially changed and reduced to reject those candidates.  Some  further defects were found that the candidates were not awarded marks for  100 meter race which had been completed within the permissible limit.   Two such examples were cited by the Division Bench.  So also it is  commented that some candidates were not given proper marks and were  not allowed to cross the benchmark.  It is on this basis that the selection  has been set aside, of course again considering the crossing of the  benchmark of 250 candidates a day.  In our opinion the exercise  undertaken of scrutinizing the marks allotted to each and every candidate  was unnecessary and unwarranted since in the petition no such assertions  were made. 44.     It is settled law that in such writ petitions a roving inquiry on the  factual aspect is not permissible.  The High Court not only engaged itself  into a non permitted fact finding exercise but also went on to rely on the  findings of the Amicus Curaie, or as the case may be, the Scrutiny Team,  which in our opinion was inappropriate.  While testing the fairness of the  selection process wherein thousands of candidates were involved, the High  Court should have been slow in relying upon such microscopic findings.  It  was not for the High Court to place itself into a position of a fact finding  commission, that too, more particularly at the instance of those petitioners  who were unsuccessful candidates.  The High Court should, therefore,  have restricted itself to the pleadings in the writ petition and the say of the  respondents.  Unfortunately, the High Court took it upon itself the task of  substituting itself for the Selection Committee and also in the process  assumed the role of an Appellate Tribunal which was, in our opinion, not  proper.  Thus, the High Court converted this writ petition into a public  interest litigation without any justification.

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45.     It is also a settled position that the unsuccessful candidates cannot  turn back and assail the selection process.  There are of course the  exceptions carved out by this Court to this general rule.  This position was  reiterated by this Court in its latest judgment in Union of India & Ors. v. S.  Vinod Kumar & Ors [(2007) 8 SCC 100] where one of us (Sinha, J.) was a  party.  This was a case where different cut off marks were fixed for the  unreserved candidates and the Scheduled Caste and Scheduled Tribes  candidates.  This Court in para 10 of its judgment endorsed the action and  recorded a finding that there was a power in the employer to fix the cut off  marks which power was neither denied nor disputed and further that the cut  off marks were fixed on a rationale basis and, therefore, no exception could  be taken.  The Court also referred to the judgment in Om Prakash Shukla  v. Akhilesh Kumar Shukla & Ors. [(1986) Supp. SCC 285] where it has  been held specifically that when a candidate appears in the examination  without protest and subsequently found to be not successful in the  examination, the question of entertaining the petition challenging such  examination would not arise.  The Court further made observations in para  34 of the judgment to the effect: "There is thus no doubt that while question of any estoppel by  conduct would not arise in the contextual facts but the law  seem to be well settled that in the event a candidate appears  at the interview and participates therein, only because the  result of the interview is not ’palatable’ to him, he cannot turn  round and subsequently contend that the process of interview  was unfair or there was some lacuna in the process."

In para 20 this Court further observed that there are certain exceptions to  the aforementioned rule.  However, the court did not go into those  exceptions since the same were not material.   46.     In our opinion the first basic thing for such a selection process would  be the lack of bona fides or, as the case may be, malafide exercise of  powers by those who were at the helm of selection process.  Both the  courts below have not recorded any finding that they found any malafides  on the part of any of the State officials who headed the interviews.  On the  other hand the tenor of the judgments show that the whole process did not  suffer from malafides, lack of bonafides, bias or political interference.  In  Union of India & Others vs. Bikash Kumar [(2006) 8 SCC 192] this  Court observed in para 14 thus: "When a Selection Committee recommends selection of a  person, the same cannot be presumed to have been done in a  mechanical manner in absence of any allegation of favouritism  or bias .  A presumption arises in regard to the correctness of  the official act.  The party who makes any allegation of bias or  favouritism is required to prove the same.  In the instant case,  no such allegation was made.  The selection process was not  found to be vitiated.  No illegality was brought to our  notice\005\005"

47.     The learned Single Judge relying upon the decision in Raj Kumar &  Others v. Shakti Raj & Others [(1997) 9 SCC 527] seems to have found  an exception to this Rule and has more particularly relied on the  observation made in para 16 to the following effect: "\005But in his case, the Government have committed glaring  illegalities in the procedure to get the candidates for  examination under the 1955 Rules, so also in the method of  selection and exercise of the power in taking out from the  purview of the Board and also conduct of the selection in  accordance with the Rules.  Therefore, the principle of  estoppel by conduct or acquiescence has no application to the  facts in this case.  Thus, we consider that the procedure  offered under the 1955 Rules adopted by the Government or  the Committee as well as the action taken by the Government  are not correct in law."

We do not think that this case is apposite for the present controversy.  In

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the reported decision the court found a clear cut breach of 1955 Rules.  It  also found that the names, though were required to be called from the  Employment Exchange, were not so called.  The Court also found fault with  the procedure involved.  We are afraid such is not the case in the present  situation.  No deviation from the rules or no inherent defect in the selection  process which would render the whole selection illegal have either been  alleged or proved.  We have already shown in the earlier part of our  judgment that there were proper advertisements issued and reasonable  procedure was chalked out in the earlier meetings held by the authorities,  even the guidelines were defined and the interviews proceeded along  those guidelines.  A mere expression of doubts only on the ground of large  number of candidates appearing and their not being objectively and  properly tested without any further material, in our opinion, cannot by itself  render the whole selection process illegal.   48.     Similarly we are not satisfied with the course taken in inviting the  objections of the selected candidates who were never bothered to be made  parties to the writ petitions.  This Court in All India SC & ST Employees  Association and Another v. A. Arthur Jeen and Others [(2001) 6 SCC  380] has stressed the necessity of joining the selected candidates as a  party in paras 13 and 14 of its judgment, referring to the reported decisions  in Prabodh Verma v. State of U.P. [(1984) 4 SCC 251] and AMS  Sushanth v. M. Sujatha [(2000) 10 SCC 197]. In these cases this Court  has stressed the necessity of the selected candidates being joined as a  party atleast in the representative capacity.  The Single Judge, after  realizing the fact that the selected candidates were not joined as a party,  though the selection lists were available to the petitioner, had merely  advertised about the dates of hearing of the petitions and when few of the  selected candidates approached the High Court, they were not even  supplied with the pleadings or the copies of the petitions in time.  All this, in  our opinion amounted to denial of an appropriate opportunity to the  selected candidates.  All this has been dealt with by both the courts below  and particularly the Division Bench in a very casual manner holding that the  decisions relied on by the appellants were individual cases.  Even if they  were so, the principles stated in those cases regarding the natural justice  were most apposite particularly in Canara Bank’s case (supra), a  reference of which has been made.  In that case this Court held: "Natural justice has been variously defined.  It is another  name for common-sense justice.  Rules of natural justice are  not codified canons.  But they are principles ingrained into the  conscience of man.  Natural justice is the administration of  justice in a common-sense liberal way.  Justice is based  substantially on natural ideals and human values.  The  administration of justice is to be freed from the narrow and  restricted considerations which are usually associated with a  formulated law involving linguistic technicalities and  grammatical niceties.  It is the substance of justice which has  to determine its form.  Principles of natural justice are those  rules which have been laid down by the courts as being the  minimum protection of the rights of the individual against the  arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order  affecting those rights.  These rules are intended to prevent  such authority from doing injustice."

The Court further went on to say:

"Concept of natural justice has undergone a great deal of  change in recent years.  Rules of natural justice are not rules  embodied always expressly in a statute or in rules framed  thereunder.  They may be implied from the nature of the duty  to be performed under a statute.  What particular rule of  natural justice should be implied and what its context should  be in a given case must depend to a great extent on the facts  and circumstances of that case, the framework of the statute  under which the enquiry is held.  The old distinction between

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a judicial act and an administrative act has withered away.   The adherence to principles of natural justice as recognized  by all civilized States is of supreme importance." (Emphasis  supplied).

The Division Bench thus could not have condoned the non supply of copy  of the writ petitions prior to the hearing of the writ petitions before the  learned Single Judge.  Similarly, after having noticed that the notice issued  by the learned Single Judge was vague and that the impleaded selected  candidates were constantly crying for the copies of the writ petitions, the  Division Bench could not have simply brushed aside those weighty  objections.  We also do not understand the alleged stand taken by the  counsel for the selected candidates before Division Bench regarding their  readiness to argue.  It is for this reason that we have extensively quoted  the arguments by the counsel in paras 19 to 22 of this judgment where the  non supply of copies of petitions was criticised.  49.     We also do not approve of the approach adopted by the learned  Single Judge of the High Court as going all the way into the facts and the  microscopic details not via the pleadings of the parties but on the basis of  an unnecessary investigation.  We also disapprove of the logic of relying on  the findings arrived at only on the basis of sample survey.  Such selection  of large number of candidates could not have been set aside on the basis  of sample survey.  No evidence was available before us as to the  proportion of this so-called "sample survey". 50.     For all the above reasons we hold in favour of the appellants and  allow the appeals, setting aside the judgments of the learned Single Judge  as well as the Division Bench in so far as they pertain to the three District  of Dhubri, Barpeta and Sonitpur.