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CASE NO.: Appeal (civil)  4760 of 2007

PETITIONER: Trivedi Himanshu Ghanshyambhai

RESPONDENT: Ahmedabad Municipal Corporation and Ors.                                                             

DATE OF JUDGMENT: 10/10/2007

BENCH: TARUN CHATTERJEE & P. SATHASIVAM  

JUDGMENT: J  U  D  G  M  E  N T [ Arising out of SLP (C) No.13941 of 2006 ]

TARUN CHATTERJEE, J. 1.       Leave granted.

2.      This appeal is directed against the judgment and order    dated    5th of July, 2006 passed by a Division Bench of the  High Court of Gujarat at Ahmedabad affirming the order of the  learned Single Judge holding that the appointment of the  appellant as an Assistant Manager in Ahmedabad Municipal  Corporation [ for short \021the Corporation\022] was bad, illegal and  invalid and accordingly, liable to be quashed.

3.      Before we deal with the question raised before us, we  may narrate the facts involved in the present case leading to  the filing of this appeal.

4.      The appellant was appointed as an X-Ray Technician in  Beherampura Referral Hospital, run under the supervision and  control of the Corporation on 1st of February, 1988.  In the  Referral Hospital, there was no post of clerks since 1983.  Since 1984, the appellant, apart from discharging his duty as  an X-ray Technician was also, regularly and compulsorily,  carrying out the clerical and administrative work connected  therewith.  According to the appellant, the administrative  activities carried out by him, inter alia, included: [i] taking X-ray  of the patients; [ii] collecting fees for X-ray; [iii] entering the  amount received in the cash book; [iv] preparation of the case  papers;  [v] maintaining of the register of the patients whose  X-ray is taken; [vi] maintaining the record of the purchase of  X-ray films; [vii] purchase of X-ray films; [viii] to fill in the octroi  forms and V\022forms; and [ix] maintain X-ray date stock register  and audit the same and several such activities which were  purely administrative in nature.  On 13th of November, 1997, a  circular, viz., Circular No. 80 was issued by the Corporation  inviting applications for 19 posts of Assistant Manager from  amongst the qualified existing employees of the Corporation.   The aforesaid circular clearly specified that an eligible  candidate should be a graduate with second class from any  recognized university with ten years of administrative  experience.  The circular also provided that preference would  be given to candidates holding a degree in law or any other  higher degree.  The appellant, in pursuance of the aforesaid  circular of the Corporation dated 13th of November, 1997,  applied for appointment to the post of Assistant Manager in  the prescribed form, which was forwarded through the Medical  Officer of the Corporation under whom he was working.  The

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said form, filled in by the appellant, was duly scrutinized and  after it was found that the appellant was eligible, the same  was sent to the Corporation for consideration.  Accordingly,  the Corporation, thereafter, directed the appellant to appear  for a written test.  A mode of selection was prescribed by the  Corporation, which comprised a two-tier system, namely a  written test of 150 marks and a viva-voce test of 50 marks.   The written test was conducted under the supervision of  Indian Institute of Management, Ahmedabad. On the basis of  performance and marks scored, 58 candidates, including the  appellant and respondents 2 and 3 were selected and asked  to appear for an oral interview.  The oral interview was  conducted by a Five Member Interview Committee comprising   (i) Municipal Commissioner, Ahmedabad; (ii) Prof. Pestonjee,  Indian Institute of Management, Ahmedabad; (iii) Dr. N.R.  Dixit, Director, Som Lalit Institute and visiting faculty of Indian  Institute of Management, Ahmedabad;          (iv) Deputy  Municipal Commissioner [Finance]; and (v) Chief Auditor,  Municipal Corporation, Ahmedabad. From the above, it would  be evident that barring two members, the remaining members  of the Interview Committee were the employees of the  Corporation. Therefore, it cannot be said that all the members  of the interview committee were under the employment of the  corporation. The Corporation prepared a merit list of the  candidates, with their qualifications and date of appointment in  the Corporation, on the basis of their performance in the oral  interview before the aforesaid Committee and also in the  written examination.  The appellant figured at Sl. No.4 in the  merit list and was shown to possess degrees in B.Sc. and LLB  and his date of appointment in the Corporation was shown as  17th of May, 1984.  On 22nd of December, 1999, a resolution  was adopted by the Corporation, whereby, it was  communicated to the selected candidates that they had been  appointed as Assistant Managers on probation for a period of  one year in the scale of Rs.8000-275-13500 and that after  completion of the probation period, their appointments would  be made acting on the basis of report of their performance.   As the appellant was figuring at Sl.   No.4 of the said  resolution, he was posted in the engineering department  against the vacancy of one Lokendre Singh Rathod.   Challenging the legality and validity of the appointments, to  the post of Assistant Manager, made by the Corporation by its  resolution dated 22nd of December, 1999, a writ petition was  filed by the respondents 2 and 3 in the High Court of Gujarat  at Ahmedabad wherein, the appellant was arrayed as  respondent No. 3. Since, in this case, we are concerned only  with the appointment of the appellant, which has been set  aside by the High Court by the impugned judgment, we feel it  proper to refer only to the case of the appellant.   In the writ  petition, it was, inter alia, alleged, by respondents 2 and 3  herein, against the appellant that he was working as an X-ray  Technician which is purely a technical post having nothing to  do with administrative work and accordingly, the requirement  as to ten years experience on the administrative side for  appointment to the post of Assistant Manager was not fulfilled.  In view of the aforesaid, the respondents 2 and 3 herein  prayed for setting aside the appointment of the appellant to  the aforesaid post of Assistant Manager.  A learned Single  Judge of the High Court allowed the writ petition, which was  affirmed by the Division Bench, thereby quashing the  appointment of the appellant to the post of Assistant Manager  in the Corporation.   

5.      The core question that needs to be decided in this  appeal is whether the appellant fulfilled the requirement of ten

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years experience on the administrative side for appointment to  the post of Assistant Manager. As noted herein earlier,  according to respondents 2 and 3, the appellant was not  qualified for being appointed to the post of Assistant Manager  in as much as he was working in the technical department as  a technical hand and accordingly, the condition of ten years  administrative experience could not be said to have been  fulfilled in his case.   

6.      Before we deal with this question, we may state that    respondents 2 and 3, who had challenged the appointments of  the appellant and other selected candidates, were themselves  unsuccessful and their names did not figure in the merit list as  they had failed to pass the oral interview.  Therefore, it is an  admitted position that challenge to the appointment of  appellant, to the post of Assistant Manager, was made by  candidates who were themselves unsuccessful in the  examination.  Keeping this fact in mind, let us now proceed to  consider whether the High Court was justified in setting aside  the appointment of the appellant as an Assistant Manager in  the Corporation.  As noted herein earlier, although the  appellant was working as an X-ray Technician, he claimed  that he had the requisite experience of ten years on the  administrative side as well. To substantiate his claim, he has  pointed out a number of administrative duties performed by  him while working as an X-ray Technician and which have  already been narrated by us herein earlier. It may be noted  that for the purpose of applying for the post in question, the  candidates were required to fill in forms, which were to be  forwarded by the heads of their departments under whom they  were working. Each form was required to be scrutinized by the  respective head and only after being satisfied that a candidate  was having more than ten years administrative experience, he  was to make an endorsement in the application form and  approve the same for being forwarded to the corporation.  Therefore, from the above, it would be evident that it was only  after scrutiny by the respective heads of the departments that  the candidature of employees was forwarded to the  Corporation for permitting them to appear in the written test  and if successful, for an oral interview. In this case, there is no  dispute that the application form of the appellant was duly  signed by the Medical Officer who had endorsed and certified  that the appellant was eligible to sit in the written test and if  successful, in the oral interview, as he had fulfilled the  requisite requirements.  As noted herein earlier, a bare  perusal of the form filled in by the appellant would clearly  show that he had satisfied the condition of ten years  experience on the administrative side. The certificates of  administrative experience, in favour of all the candidates  falling in the technical category, were issued by the Medical  Officer of Health and counter signed by the Medical Officer-in- charge of Municipal Referral Hospital, Behrampura, AMC. In  so far as the appellant was concerned, the medical officer in- charge of the Municipal Referrel Hospital, Behrampura, AMC,  AM (Health), under whom the appellant was working as an  X- ray technician issued the certificate on 10th of May, 2000,  which was placed before the High Court in the writ petition.  The certificate runs as under:  \023It is hereby certified that Shri Himanshu  Ghanshyambahi Trivedi is rendering service since last  12 years at Health Department as X-ray technician.  Since 22nd December, 1999 as per the GDEST 8313, he  is holding the post of Assistant manager in the higher  grade as well as fro the same date he has attended  Engineering (Project) Division.

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    By the Health Department in the city of  Ahmedabad five referral hospitals are run, Since 1983  referral hospitals began and since then no post of clerk  is opened. Therefore, the technicians in each division as  to compulsorily discharge the duties as technicians as  well as administrative clerk. As a X-ray technician he  has to perform the following administrative duties. i)      He has to perform the duty of taking X-ray of the  patient. From each patient as per the rules of the  Corporation he has to collect the money and issue  receipt as well as to enter those amount collected in the  case paper.  ii)     He has to prepare X-ray register in which he has  to record the name of the patient whose X-ray is taken. iii)    He has also to maintain the book and enter therein  the details of the X-ray plates and X-ray films purchased  by him and also to enter in the register the X-ray used  by him and also to prepare the expense book, submit  the same for audit by the Corporation and also to  answer any queries regarding the same. v)      He has also to maintain X-ray date stock register  and that is also audited from time to time and the  responsibility of auditing is also upon him. vi)     The X-ray technician is holding independent  charge and therefore, in his department he is  responsible for reparation as well as for proper  maintenance and also has to maintain other such  registers. Thus for the records of the X-ray department  as well as of other departments, he is responsible. vii)    That in the X-ray department need also arises for  the sale of old X-ray films for which he has to contact the  part whom the corporation has approved and thereafter  as per the rules of the corporation he has to sell the old  X-ray filings, collect money from him and issue receipt  thereof and deposit the amount so collected with the  Corporation. All these responsibilities are to be  shouldered by him.      Thus X-ray technician has to discharge the  obligation and has also to perform other duties. Over  and above that he has also been discharging the  administrative duties and works aforesaid compulsorily.       He has discharged technical as well as  administrative duties diligently, honestly and  satisfactorily. Till date has not allowed any complaint of  any sort in his department. He holds a good moral  character.  Sd/- Medical Officer-In-Charge Municipal Referred Hospital, Behrampura, AMC        AM (Health)  Health Officer\024       From the aforesaid certificate, it would be evident that the  appellant was having administrative experience, even though  he was working as an   X-ray technician. The stand taken by  the Corporation before the High Court was also to the effect  that the appellant had satisfied the requirement as to ten  years administrative experience and, therefore, he could be  appointed as an Assistant Manager.  In so far as the appellant  was concerned, the Corporation in paragraph 9 of the  affidavit, filed before the High Court, stated as under: \023It is alleged that one Mr. Trivedi Himanshi is X-ray  Technician and therefore ought not to have been  selected on the ground of lack of administrative  experience.  It is stated that Mr. Trivedi is holding

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the qualification of B.Sc. and LLB plus course of  Radiology Branch.  It is stated that    Mr. Trivedi is  working as X-ray Technician since 1984 and he is  responsible not only the technical work, but also for  clerical and administrative work of the said  department.  It is stated that there is no clerk in the  Radiology Department of the Hospital and X-ray  Technician has to do clerical work and has to work  as an Administrative help qua the administration for  maintaining the records about working of the  Radiology Department.\024(Emphasis supplied)

7.      Before the High Court, an affidavit in reply was also filed  by the appellant along with the other selected candidates,  inter alia, stating that the only allegation made against the  appellant was to the effect that he was a man of technical  cadre and lacked administrative experience and that it was put  to rest by the certificate dated 10th of May, 2000 issued by the  Corporation. It may be noted that the certificate                    dated 10th of May, 2000 was issued by the Corporation, at a  time, when the writ petition was pending before the High  Court. But, it must also be remembered that the application  form of the appellant was forwarded by the Medical Officer  under whom he was working, endorsing his signature thereon  and thereby approving that the appellant was having more  than ten years experience on the administrative side as well.  Even if an objection is raised that the certificate dated 10th of  May, 2000 issued by the Corporation cannot be looked into  because it was issued at the time when the writ petition was  already pending and not at the time of selection before the  selection committee, even then, the endorsement and  approval of the Medical Officer, under whom the appellant  was working, was duly made and therefore cannot be  overlooked. In categorical terms, the Corporation had taken  the stand before the High Court that in so far as the  technicians are concerned, no clerks were appointed and  therefore, the clerical/administrative work was also required to  be done by the technicians.  Apart from the aforesaid  certificate, which enlisted the different administrative duties  performed by the appellant, the endorsement in the  application form by the Medical Officer approving the nature of  administrative work performed by the appellant and forwarding  the duly scrutinized form to the corporation, would clearly  show that the appellant was performing administrative work  for more than ten years in the Corporation. The said form was  then examined and scrutinized by the Committee, which  conducted the written test and thereafter, permitted the  appellant to appear in the written examination for the post in  question. The application form was also placed before the  Interview Committee, which had conducted the oral interview  of the appellant. It may be mentioned, as noted herein earlier,  that the oral interview was conducted by a Five Member  Interview Committee consisting of (i) Municipal Commissioner,  Ahmedabad; (ii) Prof. Pestonjee, Indian Institute of  Management, Ahmedabad; (iii) Dr. N.R. Dixit, Director, Som  Lalit Institute and visiting faculty of Indian Institute of  Management, Ahemdabd;          (iv) Deputy Municipal  Commissioner [Finance]; and (v) Chief Auditor, Municipal  Corporation, Ahmedabad who are all respected persons of the  society. The five member interview committee, which  consisted of eminent persons of the society, would not have  allowed the appellant, who is a technical hand, to appear  before them with out first satisfying themselves that the  appellant had possessed ten years administrative experience.  If the administrative experience shown in the application form

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could not be treated as a sufficient compliance with the  requirement as to ten years experience on the administrative  side, the interview committee, being an expert committee,  could have rejected the candidature of the appellant on the  ground that he did not possess the requisite administrative  experience for appointment to the post of Assistant Manager  in the corporation. That apart, on the question of  administrative experience of the appellant, who was working  as an      X-ray technician, no objection was raised either by  the Examination Committee which conducted the written  examination or by the Interview Board which conducted the  oral interview. Even the candidates namely, the writ  petitioners-respondents 2 and 3 herein did not raise any  objection, by making a prayer, either before the examination  committee or before the interview board, that the appellant  lacked the requisite administrative experience for selection to  the post in question. After scrutinizing and considering the  application forms of all the candidates, they were directed to  appear in the written test and thereafter, those who were  found to have passed the written examination were directed to  appear before the Interview Board for an oral interview. From  the record, it also appears that in the past, many persons, who  were holding technical posts were promoted to administrative  posts and subsequently have been further promoted. That  apart, the corporation, at the time of inviting applications for  appointment to the post in question, had never stated that the  persons of technical cadre should not apply. On the contrary,  the circular dated 13th of November 1997 clearly stated that  candidates of all the departments were qualified to apply, on  fulfilling the requirements laid down in the circular. The writ  petitioners-respondents 2 and 3 herein cannot be permitted to  raise the objection that the appellant could not have been  considered for appointment, he being a technical hand without  any administrative experience, after the appellant was  selected along with the other selected candidates. It was open  to the respondents 2 and 3 to raise such an objection at the  initial stage, either in the written examination or at the time of  the oral interview. Such objection was raised, for the first time,  by the respondents 2 and 3, after the appellant successfully  completed four months in his capacity as an Assistant  Manager (his promoted post in the corporation). That apart, it  appears from the judgment of the High Court that the High  Court has quashed the appointment of the appellant only,  although, the corporation had appointed seven other  candidates, holding such technical posts. Therefore, we are  unable to agree with the High Court that the administrative  experience enlisted by the appellant in his application form,  duly endorsed by the Medical Officer, could not be considered  as an administrative experience of over ten years and  therefore, the appointment of the appellant should be  cancelled.  In any view of the matter, it is not for the courts to  find out whether a candidate, from the technical side, was  having administrative experience of ten years when he applied  for the post of Assistant Manager as we find that the manual  of the Corporation clearly states that it was the sole discretion  of the Municipal Commissioner to consider as to which post  was technical or administrative. In our view, the High Court  had failed to appreciate that the corporation, being the  employer, is the best judge to decide whether the appellant  had discharged the responsibilities on the administrative side  and once the corporation came to a finding that the appellant  had discharged not only the duties of an X-ray technician but  also performed clerical/administrative work, particularly in view  of the admitted fact that since 1984, no post of clerks was  created in the Beherampura Referral Hospital, the High Court

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was not justified in concluding that the appellant did not  possess the administrative experience of more than ten years.  

8.      As noted herein earlier, respondents 2 and 3 who had  filed the writ petition before the High Court, challenging the  appointment of the appellant were themselves unsuccessful in  the examination, even though they claimed that they had  passed the written examination but failed in the interview.   Since the names of respondents 2 and 3, who were the writ  petitioners before the High Court, did not figure in the merit  list, in our view, it was not open to them to challenge the said  selection list and the appointment of the appellant before the  High Court.       9.      It is not in dispute that the respondents 2 and 3 as well  as the appellant were all found eligible, in the light of the  marks obtained in the written test, to be called for the oral  interview. Up to this stage, there was no doubt. The  Respondents 2 and 3 and the appellant appeared before the  Committee constituted by the corporation for conducting the  oral interview. The respondents 2 and 3 could not clear the  oral interview and were not selected whereas the appellant  was found successful and accordingly, selected. Therefore,  there cannot be any dispute that only because the  respondents 2 and 3 could not get selected and named in the  final merit list, as a result of their combined performance, both  in the written test as well as in the oral interview, they  challenged the appointment of the appellant and other  selected candidates by moving the writ petition. Such being  the position, we are of the view that the High Court was not  justified in exercising its power under Article 226 of the  Constitution by granting relief to the writ petitioners, who are  now respondents 2 and 3 in this appeal. As we are of the  opinion that the appellant did possess the administrative  experience of ten years required for selection to the post of  Assistant Manager in view of the varied nature of work  performed by him while working as an X-ray Technician, we  do not find any reason to take a view, different from the one  taken by the Corporation and the Selection Committee.    Therefore, we are of the view that it was not open to the  respondents 2 and 3 to challenge the appointment of the  appellant and other selected candidates, as they were  themselves unsuccessful in the test.  In this connection,  reliance can be placed on a decision of this Court in the case  of Madan Lal and Others Vs. State of J & K and Others  [(1995) 3 SCC 486].    

10.     Accordingly, we are of the view that the High Court was  neither justified in interfering with the appointment of the  appellant by holding that he did not possess the requisite  administrative experience of ten years while working as an X- ray Technician nor was it open to the High Court to entertain  the writ petition challenging the appointment of the appellant  and other selected candidates at the instance of the  unsuccessful candidates.  

11.     Before parting with this judgment, we may deal with a  short submission of the learned counsel appearing on behalf  of the respondents 2 and 3. It is an admitted position that  although, the respondents 2 and 3 had passed the written  examination conducted under the supervision of the Indian  Institute of Management, Ahmedabad, they were unsuccessful  in the oral interview. Therefore, according to the learned  counsel for the respondents 2 and 3, they did have the locus  standi to move the writ application for challenging the

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appointment of the appellant because they were successful in  the written examination. In this connection, a decision of this  Court in the case of Alocious Fernandez Vs. Union of India,  reported in [JT 1992 SC 169] was strongly relied on. In that  decision, this Court had laid down that an appointment in  disregard to the rules is a matter not between the appointing  authority and the appointee himself, but, all those who had  similar qualification and could not apply as they did not  possess the qualifications mentioned in the advertisement, are  also affected. Neither do we accept this submission of the  learned counsel for the   respondents 2 and 3, nor can we rely  on the decision of this Court in the case of Alocious  Fernandez [supra], for the simple reason that in this case,  admittedly, respondents 2 and 3 were not selected on the  combined performance of the candidates in the written test  and the oral interview.  Although, the selection process itself  was challenged before the High Court, it is to be noted that  the learned Single Judge, while allowing the writ application,  had turned down the argument of the           respondents 2  and 3 holding that the entire selection process could not be  said to be illegal or tainted with mala fides. So far as the  Division Bench is concerned, we do not find any argument  advanced by the       respondents 2 and 3 challenging the  selection process before it. That being the position, we are  unable to hold that even though, the               respondents 2  and 3 were unsuccessful in the test and could not figure in the  merit list, they would be entitled to challenge the appointment  of the appellant. Another decision of this Court in the case of  Atul Khuller and Others Vs. State of J & K and others reported  in [(1986) Suppl SCC 225] was also relied on by the learned  counsel for the           respondents 2 and 3 in support of the  contention that it was open for an unsuccessful candidate to  challenge an appointment by way of a writ petition. Learned  counsel for the respondents 2 and 3 relied on paragraph 20 of  the said decision in which it has been observed by this Court  that the Selection Committee conducting the viva test should  maintain the entire record, including the original worksheets  on which marks were recorded by each member separately,  for a minimum period of one year after the examination and  failure to do so can strengthen an allegation of mala fide  against the selection committee. Since the Corporation could  not produce the record before the High Court, the learned  counsel for the respondents 2 and 3 submitted that a case of  mala fide on the part of the Corporation for not producing the  records before the High Court ought to have been found and  therefore, the appointment of the appellant ought to be  cancelled as done by the High Court. In our view, this  submission of the learned counsel for the respondents 2 and 3  cannot be accepted. It is true that the records relating to the  marks obtained by the candidates in the written test as well as  the oral interview could not be produced before the High Court  because they were lost and thus not available. In our view, in  the absence of any material on record, we are unable to  accept the contention of the learned counsel appearing for the                respondents 2 and 3 that the records were not produced by  the Corporation due to mala fide intention. In this connection,  the finding of the learned single judge on the question whether  an adverse inference could be drawn against the corporation  for non- production of the records before the High Court and  whether for such non-production, a case of mala fide could be  found, may be seen. The learned single judge, while allowing  the writ petition, on consideration of the entire materials on  record, came to a finding that in the absence of any specific  averment of mala fides against the Members of the Committee  holding the interview test, it was neither possible to strike

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down the result of the interview nor would it be proper to  conclude that the Corporation had conducted the interview in  an illegal or unlawful manner. We also endorse the same view  and hold that only because the records could not be produced  in view of the fact that they were lost and not available, the  appointment of the appellant could not be cancelled,  particularly when no mala fide had been attributed by the writ  petitioner \026      respondents 2 and 3 in the writ petition.   

10.     For the aforesaid reasons, this appeal must succeed  and accordingly, the judgments of the Division bench of the  High Court as well as of the single judge are set aside and the  writ petition filed by the respondents 2 and 3 stands  dismissed.  No order as to costs.