Estoppel to challenge selection process is not applicable - when notified selection process is not followed and the selection criteria which is followed was never notified; SC.

Supreme Court of India

Justice Ashok Bhushan & Justice Navin Sinha

The SC on April 08, 2020 {RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR & ORS.} held that selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result, hence, the writ petitioners cannot be estopped from challenging the selection. It was held that the writ petitions filed by the petitioners could not have been thrown on the ground of estoppel.

It was held that a candidate, who participates in a selection without a demur taking a calculated chance to get selected cannot turn around and challenge the criteria of selection and the constitution of the selection committee is well settled preposition of law. It was held to be not applicable in the facts of the present case

However, the SC relied upon, Bishnu Biswas and others v. Union of India and others, (2014) 5 SCC 774, wherein it was held:

"19...........The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while a large number of candidates got equal marks in the interview as in the written examination......................."

But it was held that the present is a case where change in criteria has been affected and altered arbitrarily with the object of down-grading and not up-grading the standards of selection. It was held that the High Court did not commit any error in not upholding the change of criteria effected after start of selection process.

It was held that the statutory notifications when entrust the Commission to devise the mode of selection and fix the criteria and the Commission being multi-member body, Chairman alone was not competent to alter the mode of selection and the criteria, which was fixed and published for conducting the selection for the post of PTI.

It was held that the decision dated 03.08.2008 was never taken on 03.08.2008 as claimed and the said resolution was prepared subsequent to declaration of the result when the learned Single Judge asked for criteria of the selection, which was produced in a separate loose sheet signed by all members.

It was thus held by the SC that the decision dated 30.06.2008 for not holding the written examination and steps taken consequent thereto were all arbitrary decisions, unsustainable in law.

It was further held that the malice in law has been dealt as “something done without lawful excuse”. The malice in law is also mala fide exercise of power, exercise of statutory power for purposes foreign to those for which it is in law intended.

It was held that when the alteration of criteria has been made, which has obviously affected the merit selection, the allegations which have been made in the writ petition against the Commission in conducting the selection are allegations of malice-in-law and not malice-in-fact.

It was also held that when the continuance of a person on a post is by virtue of an interim order, the continuance is always subject to outcome of the litigation. It was held that the displacement of appellants from their posts is inevitable consequence of upholding of the judgment of the High Court.

It was directed that the Commission shall conclude the entire selection process initiated by the advertisement No.6 of 2006 as per criterion notified on 28.12.2006 i.e. holding objective type written test of 200 marks and viva voce of 25 marks. It was directed that all the applicants who had submitted applications in response to the above advertisement including those who were selected shall be permitted to participate in the fresh selection as directed.

In the present case, the appeals have been filed before the SC against the common judgment of High Court of Punjab and Haryana dismissing LPA filed by the appellants affirming the judgment of learned Single Judge by which the Selection dated 10.04.2010 selecting appellants on the post of Physical Training Instructor (PTI) was set aside. The appeals were dismissed by the SC, but with the modification  & direction for completion of selection process as aforesaid.