TMI Blog2008 (11) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en examination was held on August 20, 1995. A list of 1070 candidates was published who had cleared the examination. On August 1, 1996, oral interview of the candidates who had cleared written examination was taken and provisional select list was prepared which was published on December 18, 1998. The empanelment was made on the basis of marks obtained by the candidates at oral interview. 5. The candidates who could not get entry in the select list prepared by the authorities on the basis of marks obtained at oral interview, approached West Bengal Administrative Tribunal, Calcutta by instituting Original Application No. 1023 of 1999. It was contended by them that the authorities had committed an error of law in totally ignoring the marks obtained by candidates at written examination and panel was prepared only on the basis of marks obtained by the candidates at oral interview which was illegal and contrary to law. Preparation of panel, therefore, was arbitrary, unreasonable and was liable to be set aside. Interim order was passed by the Tribunal on April 9, 1999 granting liberty to the authorities to make appointment of candidates selected and empanelled subject to the result in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess was vitiated, no such sympathy could have been shown to the candidates selected in the said selection process. It was also observed that the question as to whether 40% marks could have been allotted to the oral test also ought to have been considered by the Tribunal keeping in view various decisions of the Apex Court. Taking note of the grievance of some of the petitioners, the High Court observed that the Tribunal would consider whether 100% roster had been maintained. Request was made to the Tribunal to dispose of the matter at an early date preferably within a period of two months from the communication of the order. That is how the first round of litigation came to an end. 9. The Tribunal again considered the matter. The main grievance of the applicants before the Tribunal, who were unsuccessful in written examination or oral interview was that the marks obtained by them in both written examination and oral interview ought to have been combined by the respondent authorities in preparation of the merit list and panel ought to have been prepared on that basis which was not done. Since the selection was made only on the basis of oral interview, the whole selection process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The Tribunal considered the rival contentions of the parties and observed that as against recruitment of 80 Medical Technologists, about 4000 candidates offered their respective candidature for appointment. It was unprecedented and perplexing situation. In absence of Recruitment Rules, an administrative decision was taken by the Government for screening unsuccessful candidates by holding written test which was legal and proper. About 2500 candidates appeared at the written test out of 4000 applicants and a list was prepared eliminating those candidates who had obtained less than qualifying marks (40%) at the written examination. Since the object of the test was only to oust huge number of unsuccessful candidates, there was no illegality in undertaking the said exercise. A final list of eligible and qualified candidates was prepared, who were called for oral interview. According to the Tribunal, the purpose of written test was only to eliminate huge number of unsuccessful candidates and it was not a case of selection based on written examination and oral interview. There was no question of `pick and choose' or showing discrimination as alleged. 13. The Tribunal also noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r upon them a fresh panel of Medical Technologies on the basis of qualifying marks in the already held written and oral test for appointment to the post of Medical Technologists; ii. 40% of such marks including the marks obtained in written and oral test should be the qualifying marks and persons who have not obtained 40% marks need not be empanelled; iii. After preparation of such panel, appointment is to be made on the basis of such panel; iv. While preparing the panel the rule relating to reservation must be taken care of; v. In the matter of preparation of panel no candidate who otherwise qualifies in the panel on the basis of the test made above should be disqualified solely on the ground of age; We are giving these directions since controversy is pending for all these years and for which the petitioner or candidates are not to be blamed. 17. It was also made clear that if those candidates who had already been appointed did not find place in the panel, consequential orders could be made by the State Government but those who were in the panel could be accommodated if by reason of existing vacancies, they could be accommodated. 18. It appears that certain ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t disturbing their seniority or continuity of their service. It directed that the remaining vacancies should be filled up on the basis of seniority position from the panel of 586 candidates. Contempt petition was accordingly disposed of. 23. The appellants being aggrieved by the directions of the High Court have approached this Court. 24. There was long delay of 559 days in approaching this Court by the appellants so far as the order passed in the Writ Petition. On July 15, 2005, notice was issued by this Court on Special Leave Petition as well as on application for condonation of delay. No stay of appointment, however, was granted pursuant to the impugned order of the High court and liberty was granted to the State to make appointments. It was, however, clarified that the appointments if any shall be subject to further orders that may be passed in the Special Leave Petition. The matter was thereafter adjourned from time to time. Affidavits and further affidavits were filed. Considering the nature of litigation and administrative problems of the State Government on one hand and future of several candidates on the other hand, it was thought fit to dispose of the matter finally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the authorities to act in accordance with the directions of the Court. 30. It was also contended that several candidates did not challenge the orders of the High Court. It was urged that having accepted the judgment and filed contempt petition, the appellants were estopped under the doctrine of estoppel, waiver or acquiescence and they cannot challenge the order of 2003 by approaching this Court after about two years. It was urged that present case is one of `approbate and reprobate', `hot and cold', or `fast and loose'. This Court, in exercise of discretionary jurisdiction under Article 136 of the Constitution may not entertain such prayer and dismiss all the matters. 31. It was further urged that in the order passed in contempt petition, the High Court observed that if any person is aggrieved by any action taken by the authorities in pursuance of the order, he is at liberty to take appropriate proceedings in accordance with law. Therefore, even on that ground, the present appeals are not maintainable. 32. The learned Counsel for the State stated that 66 persons have been retained who were selected and appointed. Initially, they were not made parties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of eligible petitioners and to extend similar benefit to them. Even thereafter, in the contempt proceedings, the selected candidates were not disturbed. By now, they have completed about ten years of service. It was, therefore, submitted that this Court, in exercise of power under Article 136 of the Constitution, may not interfere with the direction issued by the High Court. 34. Having heard learned Counsel for the parties, in our opinion, the appeals deserve to be partly allowed. The contention on behalf of the State Government that written examination was for short-listing the candidates and was in the nature of `elimination test' has no doubt substance in it in view of the fact that the records disclose that there were about 80 posts of Medical Technologies and a huge number of candidates, approximately 4,000 applied for appointment. The State authorities had, therefore, no other option but to `screen' candidates by holding written examination. It was observed that no Recruitment Rules were framed in exercise of the power under the proviso to Article 309 of the Constitution and hence no such action could be taken. In our opinion, however, even in absence of statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view was taken both by the Tribunal and by the High Court. The decision of the High Court was not challenged immediately. On the contrary, by filing a Contempt Petition, implementation of the direction of the High Court was sought by the appellant. The said direction was, therefore, binding on all the parties including the appellants. 36. 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. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside. 37. The Tribunal stated; In the case before us, the marks obtained in the written tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted by the respondents in the matter. There was again no question of cancellation of the appointments given by the State Respondent authorities to 190 candidates. They have served for about 3 years and have hence gained sufficient experience in the work of investigation entrusted to them. Again any other setting aside their appointments was bound to affect adversely the working of various medical Technologists in different Medical Units throughout the State of West Bengal. We also hold that fixation of qualifying marks in both written and oral test as 40% is quite lawful and valid in the facts and circumstances of the case. In the aforesaid background and scenario, we direct that the appointees (in-service candidates) will continue to do work as Medical Technologists. We also hold that the panel of 240 candidates was quite lawful and valid. Accordingly, we direct the State respondent authorities to offer appointments to the successful candidates, who are not now waiting in the Panel (Namely from Sl. No. 202-240) subject to availability of vacancies and also subject to medical examination and police verification. We also issue directions to the Respondents concerned, to relax th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and we see no infirmity in such a direction. 47. In Munindra Kumar and Ors. v. Rajiv Govil and Ors. (1991)IILLJ103SC , 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. 48. In Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and Ors. 1994 Supp (2) SCC 591, this Court recorded a finding that appointments given under the `wait list' was not in accordance with law. It, however, refused to set aside such appointments in view of length of service (five years and more). 49. In Buddhi Nath Cahudhary and Ors. v. Akhil Kumar and Ors. [2001]2SCR18 , appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. We have extended equitable considerations to such selected candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ-Court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 55. If the petitioner wants to invoke jurisdiction of a writ-Court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime [vide State of M.P. and Anr. v. Bhailal Bhai [1964]6SCR261 ; Moon Mills v. Industrial Court, Bombay AIR 1967 SC 1450; Bhoop Singh v. Union of India and Ors. (1993)ILLJ260SC ]. 56. This principle applies even in case of an infr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicants who have approached this Court in the present proceedings. 61. Though there is considerable force in the argument of the learned Counsel for the State and contesting respondents that there is substantial delay on the part of the appellants in approaching this Court, in the light of factual scenario and the direction which we are inclined to issue, we have thought it fit not to dismiss Special Leave Petitions on the ground of delay but considering merits of the case, we are issuing necessary directions granting relief to the appellants who were vigilant about their rights. 62. Similarly, there is also substance in the contention of the learned Counsel for the respondents that the appellants, by appearing in the written examination and oral interview had taken a chance and having failed have approached the Tribunal. Again, a Special Leave Petition filed by some candidates has already been dismissed by this Court. But in the larger interest and keeping in view vacancies in the cadre, we have granted equitable relief in favour of eligible and qualified applicants. 63. In the result, the appeals are partly allowed. Service of 66 candidates who were selected and app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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