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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.
Issues Involved:
1. Legality of the selection process for Medical Technologists. 2. Consideration of marks from both written examination and oral interview. 3. Validity of the Tribunal's and High Court's protection of already appointed candidates. 4. Delay and laches in approaching the Supreme Court. 5. Applicability of the doctrine of estoppel, waiver, or acquiescence. 6. Equitable relief for candidates who challenged the selection process. Issue-wise Detailed Analysis: 1. Legality of the selection process for Medical Technologists: The selection process was challenged on the grounds that it was based solely on oral interviews, disregarding the written examination marks. The Tribunal initially set aside the merit list prepared solely on oral interview marks and directed a fresh list combining both written and oral marks. The High Court supported this view, stating that the selection process must consider marks from both written and oral tests to be valid. 2. Consideration of marks from both written examination and oral interview: The Tribunal and the High Court both held that the merit list should be prepared based on the combined marks from written and oral tests. The High Court directed the State Government to prepare a fresh panel considering both sets of marks, with 40% as the qualifying mark. This decision was upheld, emphasizing that the written test was not merely an elimination test but part of the selection process. 3. Validity of the Tribunal's and High Court's protection of already appointed candidates: The Tribunal and the High Court protected the appointments of 66 candidates who had already been appointed and were in service. The Tribunal reasoned that these candidates were not made parties to the original application and thus could not be affected without being heard. The High Court, in subsequent orders, continued this protection, stating that these candidates had gained experience and their removal would disrupt services. 4. Delay and laches in approaching the Supreme Court: The appellants approached the Supreme Court after a significant delay of 559 days. The Court noted this delay but decided to hear the case on merits due to the larger interest involved. The Court emphasized that while delay and laches are important considerations, they would not dismiss the case solely on these grounds. 5. Applicability of the doctrine of estoppel, waiver, or acquiescence: The respondents argued that the appellants, by participating in the selection process and then challenging it, were estopped from raising objections. The Court acknowledged this argument but decided to grant relief considering the overall circumstances and the interests of justice. 6. Equitable relief for candidates who challenged the selection process: The Supreme Court granted relief to the appellants who had actively challenged the selection process, directing the State Government to consider their cases for appointment based on the merit list prepared as per the High Court's order. The Court clarified that this relief would not extend to candidates who had not challenged the selection process earlier and had approached the Court for the first time through interim applications. Conclusion: The Supreme Court partly allowed the appeals, maintaining the protection of the 66 already appointed candidates and directing the State Government to consider the cases of the appellants who had challenged the selection process. The Court dismissed the applications of candidates who approached it for the first time through interim applications, emphasizing the importance of timely action in seeking judicial relief.
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