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2008 (11) TMI 718 - SC - Indian LawsValidity of selections made in respect of the 80 posts, namely, Medical Technologist (Laboratory) - all appointees not impleaded - empanelment was made ignoring the marks obtained at written examination and was prepared only on the basis of marks obtained by the candidates at oral interview - empanelment was arbitrary and unreasonable - allocation of more than 15% marks for oral interview - Waiver of fundamental rights - 66 candidates were selected and appointed in 1998-99 - candidates who were unable to get themselves selected who raised a grievance and made a complaint by impleadment applications - HELD THAT:- In our opinion, the High Court in the second round, did not commit any error of law in directing the authorities to prepare merit list on the basis of marks obtained by the candidates in written examination as also in oral interview. It was not open to the State authorities to reiterate and re-agitate in the second round, the same ground, that written examination was in the nature of `elimination test' and it was limited to `short listing' of candidates and marks obtained by candidates at the written examination could not be considered for preparation of merit list. The said stage had already gone and the decision in the first round had attained finality so far as the nature of written examination was concerned. The Tribunal and the High Court were, therefore, right in holding in the second round that the merit list was required to be prepared on the basis of composite marks obtained by candidates at the written examination and oral interview both and not only on the basis of marks at the oral interview. Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the Employment Exchange, they were selected and appointed in 1998-99. The candidates who were unable to get themselves selected who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the Original Application, which was not done. In any case, some of them ought to have been arrayed as respondents in a `representative capacity'. That was also not done. We are of the considered view that it would be inequitable if we set aside appointments of candidates selected, appointed and are working since 1998-99. We, therefore, hold that the Tribunal and the High Court were right in not setting aside their appointments. In Munindra Kumar and Ors. v. Rajiv Govil and Ors. [1991 (5) TMI 255 - SUPREME COURT], the selection comprised of written test, group discussion and oral interview. The relevant rule fixed 40 per cent of total marks for group discussion and oral interview (20 per cent each). Though this Court held fixation of marks as arbitrary being on higher side, it refused to set aside selection made on that basis since selection had already been made, persons were selected, appointed and were in service. It is clear that written examination for the selection of Medical Technologists was taken as early as in August, 1995 and list of more than 1,000 candidates was published in June, 1996. By now more than a decade has passed. The applicants who had never challenged the selection before the Tribunal, before the High Court and before us and have applied for the first time in the present proceedings which were instituted in 2005 by filing impleadment applications have thus accepted the position as prevailed in 1996. Qua them, therefore, the matter can be said to have been `settled'. Initiation of proceedings at the instance of those candidates now will `unsettle the settled position'. Those candidates who had not approached the Tribunal, High Court or this Court have now filed Interim Applications in this Court. The ld Counsel appearing for those applicants submitted that they may also be granted similar benefits. It was urged that equals must be treated equally which is the fundamental right enshrined in Articles 14 and 16 of the Constitution. It was vehemently argued that it is settled law that fundamental rights cannot be waived. Hence, even if the applicants had not approached this Court earlier, they can come to this Court claiming similar relief by invoking Part III of the Constitution The ld Counsel for the State is right in contending that even if this Court holds that the appellants who have approached this Court are entitled to some relief, such relief could be granted to those candidates who had grievance against the selection and who had challenged the action of the respondent authorities but it could not be extended to the applicants who have approached this Court in the present proceedings. In the result, the appeals are partly allowed. Service of 66 candidates who were selected and appointed in 1998-99, whose appointments were initially not challenged and thereafter who were protected by the Tribunal and by the High Court have not been disturbed. The appellants who are similarly situated to 66 respondents who are protected in the present proceedings will be treated at par with those respondents. And if on the basis of merit list prepared as per the order of the High Court, they are found eligible and qualified, the State Government will consider their cases, i.e. the cases of the appellants and will appoint them in accordance with law. Age bar, if any, will not come in the way of those candidates. The said benefit, however, is limited to those candidates who have challenged the selection by approaching the Tribunal, the High Court and this Court. Our directions will not apply to those candidates who have approached this Court for the first time by filing Interim Applications. Their applications, therefore, stand dismissed.
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