Anoop Chitkara DECISION
Tarlok Singh Chauhan, J.
1. Aggrieved by the selection of the private respondents No. 3 to 18 as Peon/Orderly/Chowkidar, the petitioners have fled the instant petition for grant of the following reliefs:
"i) Issue a writ of Mandamus, Certiorari or other appropriate writ or direction as this Hon'ble Court deems fit quashing the result/Select List dated 20.01.2020 (Annexure P-9) prepared for all intents and purposes.
ii) Issue a writ of Mandamus, Certiorari or other appropriate writ or direction as this Hon'ble Court deems fit quashing the very constitution of two different Interview Board constituted by Respondent No. 1 for carrying the process of personal interview/viva voce of candidates for the post of Class-IV Peon/Orderly/Chowkidar in the establishment of District & Session Judge, Mandi, District Mandi, Himachal Pradesh, for all intents and purposes.
iii) Issue a writ of Mandamus, Certiorari or other appropriate writ or direction as this Hon'ble Court deems fit directing the respondents to re-advertise, re-conduct the recruitment/Selection process afresh for the post of Class-IV Peon/Orderly/Chowkidar in the establishment of District & Session Judge, Mandi, District Mandi, Himachal Pradesh.
iv) In alternative issue a writ of Mandamus, Certiorari or other appropriate writ or direction as this Hon'ble Court deems fit directing the respondents to devise & frame a transparent system/method of carrying selection/recruitment process for the post of Class-IV Peon/Orderly/Chowkidar in the establishment of respondents No. 2 and 3 then solely on the basis of personal interview/viva voce, within a time bound manner and accordingly, carry the recruitment process for the vacant posts within a time bound manner.
v) Issue a writ of Mandamus, Certiorari or other appropriate writ or direction as this Hon'ble Court deems fit directing Respondents No. 1 & 2 to place on record the particular of the selected candidates/family background, details whether their family members, relatives etc. were, are serving in any of the Hon'ble Courts in the State of Himachal Pradesh, for the effective adjudication of the issue so raised by the petitioners.
vi) Issue a writ of Mandamus, Certiorari or other appropriate writ or direction as this Hon'ble Court deems fit directing the respondents to lay down yearly fixture w.r.t. filling up of various vacant post/to fall vacant of officials/staff in the respective Civil and Session Division in various Districts in Himachal Pradesh on regular/daily wage basis in its establishment in accordance with law and announcement of the Apex Court."
2. It is averred that the entire selection process is vitiated on account of it being unfair, unlawful, arbitrary, illegal resulting in discriminatory appointments.
3. Respondent No. 1 has contested the petition by fling reply wherein it is averred that the petitioners once having participated in the selection process and found unsuccessful cannot turn around and lay challenge to the same. It is further averred that the selection was conducted strictly in accordance with the rules in a fair and transparent manner and, therefore, needs to be upheld. It is further contended that in absence of the members of the Selection Committee, the bald and vague allegations of malafides as set out in the writ petition cannot be gone into. The writ petition otherwise deserves to be dismissed for want of necessary parties.
4. We have heard the learned counsel for the parties and have gone through the material placed on record.
5. A perusal of the grounds raised in the writ petition would reveal that there is no specific allegation made against the member(s) of the Selection Committee vis--vis any candidate in particular. The allegations are far too vague and general to maintain the writ petition.
6. It is more settled that vague allegations of malafides are not enough to dislodge the burden resting on the person, who makes them. There must be strong and convincing evidence to establish the allegations of malafides specifically and definitely alleged in the petition. The allegations of malafides must inspire confidence in the Court and should be based on concrete material. Such allegations ought not to be entertained on the mere making of them or on considerations borne out on conjectures or surmises. There must be firm foundation of facts pleaded and established, and inference of malafides or favoritism cannot be drawn on the basis of vague suggestions. Vague insinuations in the petition would not suffice to hold that the selection is vitiated by favoritism.
7. The burden of proving that there is an abuse of power lies on the person alleging the same. While exercising the powers of judicial review, the High Court would not readily accept the charge of "malus animus" laid against the High Court or the Subordinate Courts. The burden of proving the charge of favoritism or malafides or biasness is always on the person, who moves the Court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides, favoritism etc.
8. The Court would resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings. There must be reasonable evidence to satisfy the Court that there was a real likelihood of favoritism, bias, malafides etc. Vague suspicions of whimsical, capricious and unreasonable people should not be made a standard to regulate the action. It would be a different matter if suspicions rested on reasonable grounds were reasonably generated, but certainly mere flimsy, elusive, morbid suspicions cannot be permitted to form the basis or ground of a decision.
9. It is the reasonableness and apprehension of an average honest man that must be taken note of. It is not every suspicion felt by a party which must lead to the conclusion that the authority conducting the selection was either bias or influenced, prejudiced etc. The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person.
10. As observed above, the pleadings in this case are far too vague and unsubstantiated and there is no material to substantiate the allegations of favoritism and nepotism etc. There is no material pleaded in the writ petition that any member of the Interview Board was bias and malafide against the petitioners and, as such, very less marks were awarded to the petitioner(s) in the interview.
11. It is by now very clear that the allegations of bias are often more easily made than proved and the very seriousness of such allegations demand proof of a high order of credibility. In the absence of necessary particulars of the charge of bias and malafide for making out a prima facie case in the writ petition, the High Court is justified in refusing the investigation into the allegations of malafides. Therefore, in the case of charge of bias, favoritism etc., there should be necessary particulars for making out a prima facie case in the writ petition, which as observed above, are substantially absent in the writ petition.
12. There are only vague and scanty general allegations set out in para No. 15 (a) to (m) in the writ petition that the entire selection/interview process has been carried out by the respondents in a highly illegal, arbitrary and discriminatory manner without any specific illustration or example.
13. There is no material placed on record for substantiating the allegations of bias or malafides against the members of the Interview Board and it is more than settled that in absence of clear-cut allegations of bias or malafides, this Court would not sit in an appeal against the marks awarded by the Interview Committee, more particularly, when the members happen to be the responsible Judicial Officers. The allegations made in the entire petition are in the realm of mere suspicion having no factual base.
14. As observed above, there is not even a whisper about any bias of the members of the Interview Committee against any of the petitioners, who are six in number. The petitioners have also not alleged any malafides on the part of the Interview Committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced. It remains in the exclusive domain of the Interview Committee to decide what marks should be given to each candidate. It cannot be the subject matter of an attack before us as we are not sitting as a Court of appeal over the assessment made by the Committee so far as the candidates interviewed by it are concerned.
15. The decision of the Selection Committee can be interfered with only on limited grounds, such as, illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection or proved malafides affecting the selection etc. The petitioners have already sought and have been duly provided the entire record of selection as was required by them from respondent No. 1 through the Information Officer on 07.03.2020. Despite this, the petitioners failed to point out any infirmity or illegality or act of favoritism, bias or malafides etc. in the selection process.
16. In Vijay Syal and another vs. State of Punjab and others MANU/SC/0413/2003 : (2003) 9 SCC 401, the Hon'ble Supreme Court held that the marks given by the Interview Committee are not subject to judicial review unless malafides or extraneous considerations are alleged and established. It would be apt to reproduce paras 12 and 17 of the judgment which read as under:
"12. As can be seen from the difference of marks secured by the candidates in interview, it does not appear abnormal or per se does not smell of any foul play or does not appear patently arbitrary. The lowest of the marks given in the interview are 11.5 and the highest are 22.87. Further marks secured in the interview and the marks secured in written test are also not grossly disproportionate. This apart, out of total marks of 240, only 25 marks were earmarked for interview. So 25 marks for interview out of 240 as against 200 for written test and 15 marks for qualification and other activities do not admit an element of arbitrariness or give scope for use of discretion by members of the Interview Committee recklessly or designedly in giving more marks to show favour in interview so as to give an advantage or march to an undeserving candidate of their over others who had shown extraordinary merit in written test. From the chart, we find among the candidates, marks secured in the written test were between 119 to 128 except in one case belonging to Scheduled Castes were 114. This apart, the marks secured in the interview are based on the assessment of the Interview Committee. Normally, it is not for the court to sit in judgment over such assessment and particularly in the absence of any mala fides or extraneous considerations attributed and established...........
17. This Court in Ashok Kumar Yadav vs. State of Haryana MANU/SC/0026/1985 : (1985) 4 SCC 417 aforementioned, found that allocation of 12.2% marks for viva voce test was fair and just and in that view directed that marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection. Even judged by this standard in the present appeals, the marks allocated for viva voce test being 25 as against total marks of 240 are less than 12.2% i.e. well within the ambit of direction given. In that case, this Court declined to exercise discretion to set aside the selection made by the HPSC after the lapse of 2 years taking note that the selected candidates had already been appointed to various posts."
17. Additionally, the petitioners have taken a calculated chance and appeared in the interview with other candidates, then only because the result of the interview is not palatable to them, they cannot now challenge the appointments by pointing out so-called irregularities here and there and the process of which they were aware, once the result is not to their liking, relief in such a case is declined by applying the principles of estoppel, acquiescence and waiver.
18. Reference in this regard can be made to a recent judgment of the Hon'ble Supreme Court in Anupal Singh and others vs. State of Uttar Pradesh, MANU/SC/1349/2019 : (2020) 2 SCC 173 wherein it was observed as under:
"55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12-10-2014 and the selection. On behalf of the appellants, it was contended that after the revised Notification dated 12-10-2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised Notification dated 12-10-2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process.
56. Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken chance to get selected at the said interview and ultimately, finds himself to be unsuccessful, in Madan Lal v. State of J&K MANU/SC/0208/1995 : (1995) 3 SCC 486, it was held as under: (SCC p. 493, para 9
"9. ... The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have fled this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."
57. In K.H. Siraj v. High Court of Kerala, MANU/SC/8184/2006 : (2006) 6 SCC 395, it was held as under:(SCC p. 426, para 73)
"73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper."
58. In Union of India v. S. Vinodh Kumar, MANU/SC/7926/2007 : (2007) 8 SCC 100, it was held as under:(SCC p. 107, para 19)
"19. In Chandra Prakash Tiwari v. Shakuntala Shukla, MANU/SC/0447/2002 : (2002) 6 SCC 127... ...
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It was further observed: (SCC p. 149, para 34)
'34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.' "
59. Same principle was reiterated in Sadananda Halo v. Momtaz Ali Sheikh, MANU/SC/7226/2008 : (2008) 4 SCC 619 wherein, it was held a under: (SCC pp. 645-46, para 59)
"59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar, MANU/SC/7926/2007 : (2007) 8 SCC 100....... The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla, MANU/SC/0478/1986 : 1986 Supp SCC 285, where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise." "
19. For all the reasons above, We find no merit in this writ petition and the same is dismissed. Interim order is vacated. Pending application(s), if any, also stand disposed of.
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