- (1.)Assailing the order 7th July, 2009 passed in O.A. No. 2543 of 2006 by West Bengal Administrative Tribunal, this writ application has been filed. Selection made by the West Bengal Public Service Commission for recruitment to the post of Principal, Government College of Art & Craft and subsequent action of the State of West Bengal appointing the writ petitioner, who was a lecturer in the field of Commercial Art of that College at that time, to the post of Principal, Government Art & Craft College. Kolkata, became the subject matter of challenge before the learned Tribunal in the original application filed by Monoj Kumar Sarkar, the respondent No. 4 of this writ application, who at the material time was acting as Principal-in-Charge, Government Art & Craft College, Kolkata. In the original application selection of writ petitioner was assailed on the grounds of non-fulfillment of essential qualification by the present writ petitioner, Sri Kamalaksha Gangopadhyay, namely, Artist in the field of Fine Arts, adequate administrative experience, teaching experience, the age bar parameters and on bias attitude of one of the members of the selection committee who acted as adviser in selection process and who was erstwhile Principal of the said College, in favour the writ petitioner, and merit of writ petitioner to hold the post of Principal by making comparative analysis of applicant's superior merit than writ petitioner satisfying all essential qualifications in terms of recruitment rule including the desirable qualifications prescribed under the said rule. Parties exchanged their respective affidavits before the learned tribunal below. Learned tribunal allowed original application on holding lack of sufficient administrative experience by writ petitioner, the first empanelled candidate, who was recommended by Public Service Commission, the bias attitude in favour of writ petitioner by one of the members of the selection committee who was erstwhile Principal of the said College and on major point of non-mentioning of desirable qualification in the vacancy advertisement, made by the Public Service Commission, though under the recruitment rule desirable qualification is specifically identified as a qualification for the said post. The present writ petitioner whose selection and appointment was under challenge, admittedly was holding the post of lecturer in Graphic design, a post in Commercial Art and not in fine Arts group, in the said College at the material time. His teaching experience and work field were dealt with adversely by the learned tribunal by a lengthy discussion of the issue on taking note of recruitment rules namely recruitment rules regulating the recruitment to the post of Principal of said college which is in the West Bengal Senior Educational Service, framed by the Hon'ble Governor in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, hereinafter for brevity, referred to as 'recruitment rule', the advertisement issued by Public Service Commission being advertisement No. 4/2005 inviting applications from the eligible candidates of fine Arts field and desirable qualification which is specified in qualification head for the said post in the said recruitment rule. This point that in the vacancy advertisement issued by the Public Service Commission, West Bengal, the desirable qualification was not mentioned and was omitted intentionally, was not pleaded by the applicant of original application, but subsequently at the time of hearing and argument, as it appears from the Judgement of learned Tribunal below, this point was answered by respective parties and Tribunal dealt with that point which became the major decision making point to reach the impugned order passed by the learned Tribunal. The impugned order reads such:
This is an application under section-19 of the Administrative Tribunals Act, 1985, filed at the instance of present petitioner, Manoj Kumar Sarkar, praying for a direction against the Respondent Authority to give appointment to the petitioner in the post of Principal, Government Art and Craft College, Kolkata, canceling the one man panel, with a further prayer for not to give appointment to Shri Kamalaksha Gangopadhyay, Respondent No. 3 in the post of Principal, Government Art and Craft College, Kolkata.

The short facts leading to the filing of this application are as under:

The applicant was appointed in the post of 'Lecturer' in Fine Arts and Indian Painting in West Bengal Educational Services in Government Art and Craft College, Kolkata in the year 1982. He was confirmed in the said post with effect from 1985, and he was elevated to the post of Assistant Professor with effect from 1990. Applicant was further elevated to the post of Reader in the said college with effect from 1998, and he became the Head of the Department In Drawing and Painting (Western Style) on and from 14th July, 1992, and he also acted as in-charge in Drawing and Painting (Western Style) as a senior-most teacher in the department from 16th May, 2002. He also acted as an Officer-in-Charge of the same college in absence of the Principal, and at last, by virtue of Government Order dated 22-09-2004, he was acting as Officer-in-Charge in the same college with full financial power of the Principal in addition to his normal duty as a Reader, and since then he was acting as an Officer-in-Charge in the same college till Private Respondent No. 3 was appointed as a Principal of the said College.

The post of the Principal of the college being vacant, Government of West Bengal approached the Public Service Commission to take steps for recommendation in terms of the Recruitment Rules in force, and accordingly, one advertisement was made on 19-02-2005 for the post of Principal, Government College of Art and Craft, Kolkata in West Bengal Educational Service, and accordingly, the applicant also applied for the said post, and he was already acting as Officer-in-Charge with full financial power of the Principal in the same college by virtue of Government order and has gained adequate administrative experience. Accordingly, the applicant on 02.08.2006 appeared before the four judges' committee with all papers, and from a reliable source, he came to learn that he has secured highest mark in the interview, and he being the senior-most teacher in the college and having best qualification and administrative experience among other 06 candidates who also appeared at the interview, he was expecting to be selected in the said post. But unfortunately, from the reliable source, he came to learn that one Shri Kamalaksha Gangopadhyay, one of the Junior teachers of the same college was going to be appointed as a Principal of Government Art and Craft College, Kolkata, ignoring the norms and procedures of selection.

It has further been alleged by the petitioner that though the applicant is having best qualification and experience than other candidates, who appeared in that selection process, yet, unfortunately, ignoring his claim an ordinary qualified person has been empanelled presumably for the reason that none of the Judges of the committee was the ex principal of the same college and relation between him and the said member was not at all very good, while at the same time, he was having a very cordial relation with Shri Kamalaksha Gangopadhyay, for which Shri Gangopadhyay was illegally preferred ignoring the claim of the petitioner. Consequently, the petitioner has approached this Tribunal with the prayers, as mentioned in the application.

This application, however, has been resisted by the State Respondents as also by the Private Respondents by filing separate replies, wherein they have denied all the material allegations contained in the application.

It has, inter-alia, been contended on behalf of the State Respondents in their reply that Public Service Commission being an autonomous body, they enjoy freedom in the matter of selection in terms of the extant rules.

In the instant matter, the Public Service Commission did nothing in contravention of the rules and regulations, as they conducted interview of the candidates for the aforesaid post of Principal having due regard to the recruitment rules, prescribed for the said post, and subsequently recommended the name of Shri Kamalaksha Ganpopadhyay, and the State having no nexus to such process of selection, they prayed for dismissal of this application.

PSC Respondent also, in their reply, has categorically denied the claim of the petitioner, as made in the application.

It has, inter alia, been contended on their behalf that 07 candidates, who fulfilled all the essential advertised qualifications and experience, were called for interview on 02.08.2006 including the present petitioner, and in fact, the petitioner did not secure highest mark in the interview, and as such, his name was not recommended for the said post.

It was further alleged that, the candidates were called for interview on the basis of the advertised essential qualification and experience, and as Shri Kamalaksha Gangopadhyay secured highest mark in the interview, hence, he was recommended for the post of Principal. It has further been alleged by them that performance at the interview is the main criteria to get recommendation for direct recruitment, and as Private Respondent No. 3 performed better that the applicant in the interview, as such, he was recommended further Principal.

It has further been alleged by them that the purpose of Commission is to ensure selection of best available person to avoid arbitrariness and nepotism, and once the Commission determines the norms of examination, and recommends a list of successful candidates to the Government on the basis of such norms, the Commission cannot re-open the selection process and lower down the norms at the instance of the Government.

It was further alleged on their behalf that the acquisition of aspersion of selection by the Public Service Commission is absolutely baseless, untenable, and without any valid cogent grounds.

It was further contended that since the candidature of Shri Kamalaksha Gangopadhyay was adjudged best among all other interviewed candidates on the interview provided by the Committee members, as such, he was recommended to the post of Principal, Government Art and Craft College, Kolkata on his securing the highest mark at the interview. So, according to them, there being no illegality, no interference by this Tribunal is, necessary.

The Private Respondent, by fling a reply, has also denied the allegations, made by the petitioner in his application, it has, inter-alia, been contended on his behalf that the Public Service Commission, West Bengal being an autonomous body, it enjoys much freedom and power in the matter of selection and the Commission is being aided and advised by experets with technical knowledge, experience, and high academic qualification in their respective specialist skill, and since in the connected matter, the Public Service Commission has acted in accordance with the rules and regulations, there is no reason, whatsoever, for interference by this Tribunal, as it cannot be held with certainty that outstanding results in the various examinations would be the only criteria to select a candidate, and if that be so, then there is no need for interview, and in course of interview, candidates has to project himself with his proven activities, and that would be adjudged by the Selection Committee, and ultimately they are the final authority to take the decision, and since it was not a promotional post, the selection committee though it fit to select the respondent No. 3 in the aforesaid post, and since there is no infirmity in the connected matter, no interference is necessary. Hence, they pray for dismissal of this application.

Now, the only question which we are called upon to decide here is as to whether the petitioner is entitled to the reliefs, as prayed for or not

We have heard the Learned Counsel representing the parties at length. We have also perused the materials available on record with meticulous care.

Indeed the Public Service Commission has been empowered by the Constitution among other things for recruitment to State posts and Services through Arts. 320 & 321. It accordingly enjoys considerable freedom in conduct of its affairs relating to recruitment but it is settled legal position that its actions are not above law or beyond judicial scrutiny.

In the instant case the Government approached the Commission for its recommendations in terms of Recruitment Rules for the vacant post of the Principal of the Government College of Art and Craft, Kolkata. Accordingly, an advertisement appeared in the newspapers on 19.2.2005, issued by the P. S. C inviting applications from the suitable candidates for the post.

The post of the Principal Government College of Art and Craft Kolkata is included in West Bengal Senior Education Service. The recruitment Rules for the post, under Article 309 of the Constitution of India were notified on the 20th May, 1986 vide notification No.329-Ed(T)/4A-43/83. The Rules provide as follows:

Notification

In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, and in supersession of the rules published with this Department Notification No. 366-Edn (T), dated the 10th April, 1974 and No. 48-Edn (T) dated the 10th January, 1976, the Governor is pleased hereby to make the following rules regulating the recruitment to the post of Principal. Government College of Art and Craft, Calcutta, in the West Bengal Bengal Senior Educational Service, namely -

Rules

The method of, and the qualifications required for, recruitment to the post of Principal, Government College of Art and Craft, Calcutta, in the West Bengal Senior Educational Service, shall be as detailed below:

1. Method of recruitment; By selection (direct recruitment)

2. Qualifications: The qualifications required for the post shall be as follows:

a) Essential;

i) The candidate must be an artist who has distinguished himself in one or more branches of Fine Arts, such as paint sculpture and graphic art with knowledge of art in general and with specialized knowledge of Indian art;

ii) (a) five years' teaching experience a reputed school of art, (b) adequate administrative experience:

(iii) a pass in Matriculation or Higher Secondary Examination its equivalent;

(iv) Knowledge of Bengali-Spoken and with evidence of having outstanding ability in and through grasp of the subjects or original contribution in the field of any discipline of Arts and Crafts active experience in conduction significant research work.

(b) Desirable:

(i) Research publication or exhibition of painting/drawing;

(ii) General knowledge of different crafts and their technical and practical bearings.

Note: Qualifications relaxable at the discretion of the West Bengal Public Service Commission for candidates of outstanding merit.

It was, however, argued by the Learned Lawyer for the applicant that the advertisement issued by the P. S. C did not contain the full text of the notified Recruitment Rules, as detailed above.

A copy of the advertisement, which appeared in the newspapers, has been filed by the applicant along with his application, the relevant extract of the advertisement, reads as follows -

PUBLIC SERVICE COMMISSION, WEST BENGAL

Advertisement No. 4/2005

(1)..............................................................................

(2) PRINCIPAL. GOVERNMENT COLLEGE OF ART & CRAFT, KOLKATA IN WEST BENGAL SENIOR EDUCATION SERVICE.

QUALIFICATIONS: Essential (I) Candidate must be an artist who has distinguished himself in one or more branches of Fine Arts, such as painting, sculpture and graphic art with knowledge of art in general and with specialised knowledge of Indian Art (ii) (a) Five years' teaching experience in a reputed school of art (b) adequate administrative experience (iii) a pass in Matriculation or Higher Secondary Examination or its equivalent (iv) Evidence of having outstanding ability in and thorough grasp of subject or original contribution in the filed of any discipline or Art and Craft or active experience in conducting significant research work (v) Knowledge of Bengali-spoken and written.

NOTE: Qualifications relaxable at Commission's discretion for candidates of outstanding merit.

INSTRUCTIONS:

(1).........................................................................................................

(2) The qualifications prescribed in the advertisement are as per the notified recruitment rules issued by Government. 3. All the degrees/diplomas mentioned in the advertisement must have been obtained from recognized University/Institutions. 4. The prescribed 'essential qualifications' are the minimum and mere possession of the same does not entitle applicants to be called in for the interview. Where the number of applications received in response to the advertisement Is large and it is not convenient or possible for the Commission to interview all the applicants the Commission may restrict the number of candidates for interview to a reasonable limit on the basis of qualifications and experience higher than the minimum prescribed in the advertisement or on the basis of a screening tests". It is seen, that as contended by the learned Lawyer for the applicant 'Desirable' part of the qualifications, which appears at (b) (I) (ii) of the notified Recruitment Rules has not found place in the advertisement issued by the PSC. It is missing altogether for the advertisement. The Learned Lawyer for the Applicant further contended that this omission was deliberate and designed to help the Private Respondent who, it was alleged, lacked the requisites demanded by the omitted part of the qualifications. It was argued that the process of selection was thus vitiated from the very beginning.

The Learned Lawyer for the PSC during his oral submission attributed the omission to cost cutting measures. But we are afraid that this submission needs to be brushed aside as the incremental cost of adding three four lines would not have burdened the PSC or the State to take such a decision, in a matter involving compliance of statutory rules.

A more serious explanation for the omission, which emerged from the arguments advanced in the case, is probably the misplaced perception or belief on the part of PSC authorities that the Commission's discretionary power allowed them to exercise such an option. Hence, it was deemed fit to relax the notified Recruitment Rules by omitting 'Desirable' part of qualifications in this case.

A note to the Recruitment Rules, as notified, does provide 'QUALIFICATIONS RELAXABLE AT COMMISSION'S DISCRETION FOR CANDIDATES OF OUTSTANDING MERIT". Plainly this discretionary power can come into play only after the receipt of applications in pursuance of the advertisement in favour of a candidate of outstanding merit. It can not be quoted or used for varying or modifying the prescribed recruitment rules in any way.

There has been no logical or credible explanation from the PSC for this omission. On the other hand it has been submitted by the PSC all along that the seven candidates who were called for interview fulfill all the advertised Essential Qualifications.

It is an admitted fact that Rules of recruitment for the impugned post were notified following constitutional norms and procedures of Art 309 of the Constitution. Position of law on this issue is well settled. Rules, once notified, under Art 309 can not be varied or modified except through due procedure to be followed in accordance with law.

We allow this matter to rest here for the present and will revert to this later after having a look at the selection process followed by the PSC in this case.

According to the affidavit filed by the PSC both the Applicant and the Private Respondent fulfilled the "advertised essential qualification and experience" and both were interviewed on the same day by the same Selection Board.

Both were the teaching staff of the Government College of Art and Craft at the material time, the applicant was a Reader and the Officer-in-charge of the College and the Private respondent was holding the post of a Lecturer.

The learned lawyer for the applicant has, however, argued rather forcefully that there is a gulf of difference in the qualifications and the experience of the two. He has submitted a chart showing a comparative position in terms of experience, qualifications and suitability of the Applicant and the Private Respondent.

Apparently the applicant is far more experienced having joined the West Bengal Senior Education Service way back in the year 1982 as lecturer in the self same institution and then moving up as an Assistant Professor in 1990. He was later elevated to the post of Reader in 1998. He was also working as the Head of the Department and functioned, in absence of a regular Principal, as the Officer-in-charge of the College. In fact he was officiating in that position, with full financial powers of the Principal, at the material time, in addition to his normal duty as Reader in the College.

On the other hand the respondent was appointed as a lecturer of the College in 2000 and was confirmed as lecturer in 2005 with retrospective effect from 2003.

On the qualification and experience front too, there is wide variance between the two candidates, it has been alleged by the Applicant.

In fact the learned lawyer for the applicant has argued that the Applicant was miles ahead of the Private Respondent in terms of his professional expertise, reputation and achievements.

He had also questioned the basic eligibility of the Private Respondent for the post of the Principal in terms of his experience and qualifications. It was argued that Essential Qualifications required 'adequate administrative experience' and in case of the Private Respondent this condition was not met satisfactorily.

It is argued that Private Respondent joined as lecturer of the College only in 2000 and had not completed the requisite number of years of Service if the fact of his confirmation In Service only in 2003 is taken into account. He also questioned his basic qualifications in terms of his Diploma in Graphic Design Art and Commercial Art. It was contended that commercial art is not included as part of what has been mentioned in the Recruitment Rules as one or more branches of Fine Arts. It was further argued that in the Government College of Art & Craft, Kolkata, there is no diploma in Graphic Design & Art, which is claimed by the Private Respondent as having acquired. Applicant's allegations have gone mostly uncontroverted except the one relating to eligibility minimum experience of 5 years.

Be that as it may, we would not like to get into these details in this case. this rightfully is the domain of the Public Service Commission. The Commission is charged with the responsibility of satisfying itself that the candidates participating in the selection process are duly qualified in terms of the extant Recruitment Rules. As an expert body the PSC has expertise and resources to do so.

However in the face of the submissions made by the applicant and taking into account the averments of the respondents we are obliged to look into the selection process followed by the PSC in this case.

The selection file was called for and scrutinized by us. The interview for the post was held on 02.08.2006. The following were the members of the Interview Board - the Chairman PSC as Chairman of the Board, the Director of Public Instruction as a representative of the Department of Higher Education., Shri Bijan Choudhury eminent artist and Vice-President Rajya Charukala Parshad as expert Adviser; and Shri Biman Bihari Das Retired Principal Government Art College also as expert Adviser.

As part of the procedure the candidates were tested orally of the seven candidates for interview one did not appear.

As per note-II the file, it was suggested that in the Interview Board

Items like (ii) (b) viz. Adequate administrative experience and items (iv) viz. Outstanding ability............significant research work of the advertisement clause may be tested.

The items mentioned above relate only to the Essential Qualifications of the notified Recruitment rules. There is no mention of any part of Desirable qualifications but these are faithful to the advertised qualifications. We thus find that during the interview, the Board assessed the relative merits of the candidates on the basis of abridged and unauthorised modified Recruitment Rules which were advertised by the PSC for the post. The PSC thus persisted, during the entire process of selection, with the fiction that the advertised rules were the Recruitment Rules for the post of Principal Government College of Art & Craft.

We looked for details of comparative assessment done by the Hon'ble members of the Board for testing the candidates on various attributes demanded of the candidates as per the Recruitment Rules.

From the record available in the file, it has not been possible to decipher the methodology adopted by the Interview Board to judge the relative merits of the candidates interviewed.

We understand the Board collectively assessed the relative merits and awarded aggregate marks to the candidates.

Private respondent has been awarded the highest marks by the Board.

The Learned Lawyer for the respondents had contended that as decided by the apex Court in Madan Lal and others v. State of J&K and others, 1995 3 SCC 486 assigning of separate marks under different heads was not necessary. A careful reading of the judgement would, however, show that the ratio of the case does not apply in this case but some of the observations are germane to the issue before us. We therefore, look into the details of the case.

In this case the petitioners had challenged the process of selection of Munsifs in the State of Jammu & Kashmir, undertaken by Jammu & Kashmir Public Service Commission, pursuant to an advertisement notice inviting applications in 1992. The selection of successful respondents had been challenged on diverse grounds. The selection process had written examination as well as viva voce test Those who qualified in the written test were called for the interview. This viva voce test was conducted under Rule 10 of Civil Service (Judicial) Recruitment Rules 1967. The petitioners contended though they did well in the viva voce test, they were unfairly excluded through the viva voce test to favour the private respondents. So far as Rule 10(1)(b), interpretation of which was under dispute, is concerned it did not provide for any separate assessment of marks for candidates at viva voce examination faculty wise, that is on intelligence, general knowledge, etc., listed in the said rule. On the contrary, it appeared that as per the said rule, while conducting viva voce examination the Committee had to keep in view the main object of assessing such candidates in the light of the guidelines given therein. In other words, the Interviewing Committee had to keep in view the overall performance of the candidates at the oral interview and while doing so their intelligence, general knowledge, personality, aptitude and suitability had to be kept in the centre. The rule merely lays down the object of assessing such candidates in the viva voce examination. It was a general guideline given to the Interviewing Committee members.

Hon'ble Court opined that in the case of recruitment to the posts of Munsif, he was required to work at the grassroots level of State Judiciary. For candidates aspiring to be appointed in such a judicial office, apart from the written test, his overall performance at the oral interview is more important and consequently the split-up of marks under various subheads at oral interview of such a candidate may not be strictly necessary unless the concerned rule regulating such a viva voce test expressly provided to that effect. As we have seen earlier Rule 10(1) (b) did not so prescribe and hence it was open to the members of the Committee to make an overall assessment of the interviewed candidates keeping in view the various factors for such assessment as laid dawn by the said rule.

It was, therefore, held that the members of the Interview Boards had during the viva voce test judged the candidate on the basis of their intelligence, general knowledge, personality, aptitude and suitability as required by Rule 10()(b) of the Recruitment Rules.

The Hon'ble Court further observed that no bias was alleged against any of members who made the selection. It cannot therefore be said that Rule 10(1)(b) was violated by the Interview Committee while conducting viva voce test We quote, "the contention is in the realm of mere suspicion having-no factual basis. It has to be kept in view that there is not even a whisper in the petition about any personal bias of the Members of the Interview Committee against the petitioners. They 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 expert committee to decide whether more marks should be assigned to the petitioners or to the respondent concerned.

In the case before us, the situation is different. The Applicant has alleged bias in the Application itself. The issue has been agitated through affidavits and arguments too. It is alleged that one of the judge was the ex-principal of the same college.

The applicant has thus alleged bias specifically on part of the last named member of the Board. It is not disputed that he was the Principal of the Art and Craft College when the private respondent was appointed lecturer of the College in 2000. There is nothing unusual about that. It only assumes some significance when one considers the arguments of the Learned Lawyer of the Applicant that the respondent joined as lecturer at the age of 48. We find nothing wrong in that also as the lateral entry into academics after experience of working in the private sector is a legitimate aspiration. The argument of the learned lawyer, however, is that the said expert was instrumental in his recruitment in the College in 2000 in his tenure as the Principal, and was now biased in favour of the respondent to get him appointed as the Principal of the College. This may or may not be true. This only confirms prior acquaintance. If true, the bias in this case is basically not so much against the Applicant but more in favour of getting a particular person being appointed to the post. We purpose not to get into this any further as it could not have been possible for the PSC to be aware of any such apprehension at the time of appointment of the said gentleman as an expert advisor. If there was any such doubt in the mind of the applicant he should have protested earlier if not at the time of interview at least immediately thereafter. We would traverse a little further and record our belief that the said gentleman could have voluntarily dissociated himself from the Interview Board in the facts and circumstances of the case.

Learned Lawyer for the Respondents have argued that the applicant having participated in the selection procedure he is estopped from alleging procedural irregularities after his having not been successful. In this connection they have cited Supreme Court decision in University of Cochin v. N. S. Kanjoonjamma and Others, 1997 4 SCC 426.

In this case, the University of Cochin adopted certain recruitment rules viz. Recruitment Rules 14 to 17A of the Kerala State and Subordinate Service Rules. To understand its relevance and applicability in our case we reproduce part of the judgement cited in reference.

It is not in dispute that Rules 14 to 17-A having specifically been adopted by the aforesaid Resolution of the Syndicate and approved by the University, the power of the University to adopt the Rules has not been challenged. The aforesaid Resolutions do indicate that the University has properly made Rules 14 to 17-A applicable in relation to the recruitment of non-teaching staff to the University in certain posts, viz. Class I, Class III and Class IV. In furtherance thereof, the Vice-Chancellor was authorised by the Syndicate to advertise the posts and constitute a Selection Committee for recruitment of the candidates. In furtherance thereof, a Committee was constituted. Advertisement came to be made. It is seen that when the general rules have been made applicable there is no necessity by the University to make a special reservation rule for special recruitment. Therefore, the non-mention of the special recruitment in the Resolution is of little consequence. As seen, the Syndicate adopted the Rules in relation to the non-teaching staff of the University. As a consequence, the advertisement came to be made for special recruitment of the Scheduled Caste and Scheduled Tribes to the posts reserved for them. In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure. That apart, we have already held that procedure was correctly followed and therefore, the omission to mention in the advertisement that it was a special recruitment is of no consequence. The further finding of the High Court related to Proviso 1 Rule 4 which provides that when duly qualified candidates are available, the appointment shall be made of them. In other words, if duly qualified candidates are not available, and then advertisement could be made for selection. That rule is applicable to the general recruitment. But with reference to the special recruitment of the candidates belonging to the Schedule Caste and Scheduled Tribes, Rules 14 to 17-A stand attracted. In addition, as seen earlier, the advertisement came to be made as early as on 22.4.1982 by which time the Resolution of the Syndicate was not adopted, the same having been adopted on 7.3.1982. So, Rule 4 is inapplicable to the special recruitment advertised on 1.10.1981. Therefore, the later Resolution applying Rule 4 has no retrospective effect.

Thus the facts of this case are different from the above cited case and the ratio of the judgement is not applicable in this case.

It has also been contended on behalf of the respondents, citing Apex Court judgement in the case of Madan Lal v. State of Jammu & Kashmir & Others, 1995 3 SCC 486 that after participating in the selection process and/or knowing well the selection procedure before selection the candidate cannot challenge the selection process. As mentioned earlier, this case relates to the Jammu and Kashmir Public Service Commission's selection procedure for filling the posts of Munsif in the State of Jammu and Kashmir under Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967. The Commission conducted first the written examination and then viva voce test. The petitioners had challenged and alleged certain irregularities in the procedure adopted for viva voce test vis a vis the provisions of Recruitment Rule 10(1)(b) of the Recruitment Rules.

In the case before us, the recruitment Rules notified under the Constitutional provisions does not provide any rules on the procedure to be followed for the selection. The PSC had also not notified any procedure or guideline for the selection. We have narrated the facts and circumstances of case earlier. Taking those into account we hold that the ratio of the case could not apply here.

It was the prerogative of the PSC to devise and follow an appropriate selection procedure to recruit the best candidate for the post. The selection procedures to be followed by the Commission were not known to the candidates nor were they informed at any stage about the attributes to be judged during the interview. As such we find another case cited by the PSC respondents viz. Union of India & Anr. v. V.V.N. Chandra Sekhran & Ors., 1998 3 SCC 694 does not help the respondents, the facts and the circumstance being different.

In the cited case it was not disputed that candidates were made aware of the procedure for promotion before they set for the written test and before they appeared before the Departmental Promotion Committee.

In the case before us however only disclosure made by the PSC as per available records is provision in the advertisement that in case of receipt of large number of applications PSC may restrict number of candidates called for interview to a manageable number on the basis of prescribed qualifications or on the basis of a screening test. The number of applications received was only 7 and PSC found no scrutiny was required for the purpose of calling candidates for interview beyond ensuring that the minimum essential qualifications were met by all of them.

But this throws up an important question. What indeed were the prescribed qualifications for this selection?

We have already observed earlier the material omission in the advertisement issued by the PSC. It may be argued that the omission was not material. In that case even its inclusion would not have affected the result of the Interview any way and the action of the PSC would have been only a minor irregularity to be overlooked. Let us look at the omitted part. It reads as follows -

(b) Desirable:

(i) Research publications or exhibition of painting/drawing;

(ii) General knowledge of different crafts and their technical and practical bearings.

Clearly these are important attributes in the selection of the best candidates when there are at least two of them meeting the test of minimum prescribed qualifications.

And now consider the nature of allegations and the diverse background of the contending candidates in terms of their qualifications, in terms of their experience both teaching as well as administrative. Let us examine all this against the background of requirement of the job statutorily expressed in terms of qualifications required both essential and desirable.

We have no hesitation in holding the said omission as material omission in this case.

What's surprising; however is that the same advertisement goes on to inform the intending candidates that Qualifications mentioned in the advertisement were the notified Recruitment Rules. In the advertisement, it is INSTRUCTION 2 which explicitly makes this declaration. We quote:

INSTRUCTIONS

(1)..............................

3. The qualifications prescribed in the advertisement are as per the notified recruitment rules issued by Government." We have seen, however, that the factual position is different. The advertised Rules were not the notified Rules. We could have thought it is a mistake.

But PSC at no stage said so. We have found no satisfactory answer from the PSC on this score.

It will not be out of place to mention here Hon'ble Apex Courts views on power and responsibility of the Public Service Commission. In Inder Prakash Gupta v. State of J & K and Others, 2004 6 SCC 786 while dealing with J & K Public Service Commission Conduct of Business and Procedure Rules 1980 held as follows -

The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Commission to meet the constitutional requirement for the purpose of discharging its duties consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action.

Further-

While going through the selection process the Commission, however, must scrupulously follow the statutory Rules operating in the field. It may be that for certain purposes, for example, for the purpose of short listing it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with statutory Rules. It can not take any action which per se would be violative of the statutory Rules or make the same inoperative for all intent and purposes.

At one place in its Reply the PSC has rightly affirmed that "it is essential to inform that the mode of recruitment as provided in by the Rules have been made by the appropriate Government authority in consultation with the Commission as required by Article 320(3)(6) of the Constitution of India. The purpose of Commission is to ensure selection of best available person to avoid arbitrariness and nepotism. Once the Commission determines the norms for an examination and recommends list of successful candidate or candidates to the Government on the basis of such norms, the Commission can not re-open the selection process and lower down the norms at the instance of the Government. The process of selection against existing and anticipated vacancies does not create any right to be appointed to the post. It is held by the Hon'ble Apex Court that the qualification as per recruitment rules must be fuflled and further the qualification laid down in the recruitment rules cannot be challenged.

PSC was, therefore, well aware of the correct legal position and statutory limitation on its authority and power on any change being brought about in the notified Recruitment Rules.

In the case before us, it has been confirmed in the Reply, filed by the PSC, that candidates have been interviewed with reference to the advertised essential qualification and experience only. A scrutiny of the selection file confirms this position.

This however, amounts to varying or modifying the Recruitment Rules framed and notified under Article 309 have statutory force and can be amended only by a Rule or Notification duly made under Article 309 Nagarjan B.N. v. State of Mysore, 1966 AIR(SC) 1942. By no stretch of imagination can we hold that this was within the discretionary power of the PSC.

It was argued by the PSC respondent that in view of Apex Court judgment in case of Neelima Mitra v. Dr. Harinder Kumar Pental, 1990 AIR(SC) 1402 that Court should have due regard to the opinion expressed by the expert committee and its recommendations. Rightly so, but in the instant case the comparative evaluation of the candidates has been done by the selection committee on the basis of advertised Rules of Recruitment which are at variance with Rules of Recruitment notified under Art. 309. Applying the ratio of the Apex Court judgment we find that selection is in contravention of statutory rules. Per se PSC had no authority to take only one part of the Recruitment Rules and completely ignore the other.

The selection was thus vitiated and is liable to be set aside.

Before proceeding further we would however like to get deeper into the submission made by the private respondent in this case to satisfy ourselves that decision we take is just and proper.

His case is that he fulfilled all the essential qualifications and was awarded the highest marks in the interview. His name was then recommended to the Government by the PSC and accordingly he has joined the post of the Principal. According to his Learned Lawyer it was the duty and obligation of the PSC to check if the private respondent possessed the minimum qualifications prescribed for the post this was done by the PSC. The selection Board then adjudged him to be best candidate and there was no illegality involved. Regarding bias it was argued that the applicant should have protested there and then. Having not done so, he is estopped to tale up this issue now.

In this connection. Learned Lawyer cited case of Kanjoonjamma v. V. Vasudevan in favour of the applicant being estopped from making allegations after participating in the selection process. We have already looked into this case and held otherwise while dealing with arguments advanced by the learned Lawyer for the PSC respondents, being respondent No. 2. It is also well settled that estoppel principle is inoperative in case of statutory violations.

It has been also argued by the learned Lawyer for the private respondent that there is no whisper in the advertisement that outstanding candidate will be given preferences, even if it were so it was not necessary that candidate with higher qualification be selected. He cited Supreme Court Judgement in quoted in Secretary Department of Health v. Dr. Anita Puri and Others, 1997 1 LLJ 110 in his favour.

In this case the appellant had approached the Apex Court by special leave against the judgement of the Punjab and Haryana High Court passed in Civil writ petition No. 688 of 1993. The writ petition had been filed challenging the selection made by the Public Service Commission for the post of Dental Officers inter alia on the ground that the selection had been made arbitrarily and is contrary to the positive terms of the advertisement indicating preference to be given to higher dental qualification. It was stipulated in the advertisement that preference would be given for higher dental qualification and the minimum qualification for the post was B.D.S. Respondent No. 1 who had the qualification of M.D.S claimed entitlement to be selected on the basis of higher qualification. It was also pleaded that the Public Service Commission acted arbitrarily in awarding 20 marks out of 100 marks for viva voce, 20 marks for general knowledge and only 2 marks for higher qualification. The private respondents who contested the proceedings filed their counter-affidavit stating therein that in the absence of any statutory rule governing the mode of selection for the post of Dental Officer, an expert body like Public Service Commission had awarded different marks and evaluated the respective merit of all the applicants and finally selected the meritorious one and, therefore, it cannot be said to be arbitrary. It was also urged that the selection thus made by the Public Service Commission is not amenable to the writ jurisdiction of the High Court. The Division Bench of the Punjab and Haryana High Court came to hold that under the advertisement in question, persons having higher qualification of M.D.S form a class by themselves and therefore, they were entitled to be selected for the post on the basis of their qualification and the Public Service Commission acted against the spirit and intention of the appointing authority who has laid down the minimum qualification for the job and indicated preference for higher qualification. By referring to the meaning of the expression 'prefer' in different dictionaries, the High Court also held such persons having preferential qualification are entitled to be selected and appointed unless they are otherwise held to be not suitable. The High Court also further came to the conclusion that the awarding of different marks by the Public Service Commission is arbitrary and irrational. With these conclusions the writ petition having been allowed and Public Service Commission having been directed to forward the names of the respondents, the State went up in appeal to the Apex Court.

With this background we now quote from the judgement of the Hon'ble Court.

The question then arises is whether a person holding a M.D.S qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified persons automatically is entitled to be selected and appointed. In adjudging the suitability of a person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate through out his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extra-curricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a MDS qualified person like respondent No. 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualified person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.

We are afraid these observations do not help the Private Respondents the way the Learned Lawyer has sought to uphold the selection. The fact and circumstances of our case are totally different.

On the other hand the observations of the Hon'ble Court strengthen our determination held so far. Keeping these observations in our view we can draw the following conclusions for guidance in this case. -

1. The applicant can not claim to be appointed as the Principal of the Arts and Craft College Kolkata merely because he is better qualified and has greater experience. But he has right to be considered for the appointment in terms of his qualifications and experience.

2. Apart from the notified Rules of Recruitment there being no statutory rule or guideline issued by the Government to the PSC for the purpose of evaluation of merit of the respective candidates the Commission has the sole authority and discretion to evolve a suitable matrix to judge the relative merit and fitness of the candidates and then make a selection in accordance with such evaluation. The Commission as an expert body has to ensure that this evaluation passes the test of not being arbitrary.

But in the case before us, as observed earlier, there is a glaring anomaly, in so far as the advertisement issued by the PSC is concerned. There has been a material omission in the qualifications advertised for the post which in effect is tantamount to amendment of the notified Recruitment Rules for this selection. This has rendered the whole exercise of this selection to the post as null and void as the said act of the Commission was without jurisdiction.

The Hon'ble Apex Court in its judgment in Liladhar v. State of Rajasthan, 1981 AIR(SC) 1777 had opined that - "the object of any process of selection for entry into a Public Service is to secure the best and most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and essential Public Service'

The set of requirements specified under the Desirable part of the Qualifications were integral part of the Rules of Recruitment, notified by the State to secure the best and the most suitable person to the post of Principal of Government College of Art and Craft Kolkata.

We are unable to hold that discretionary power conferred by the Recruitment Rules to allow relaxation of norms in case of candidates of outstanding merit empowered the PSC to obliterate the Desirable Qualification altogether from the notified recruitment Rules to make this selection.

We, therefore quash and set aside the selection made by the Public Service Commission on the basis of the advertisement issued by the PSC for recruitment to the post of Principal Government College of Art & Craft, Kolkata.

The appointment of respondent No. 3 to the post of Principal,/ Government Art & Craft College, Kolkata Is hereby quashed and set aside.

We further issue direction on the Commission to initiate the process of selection afresh in accordance with law and complete it within a period of six months from the date of communication of this order.

The candidates who applied earlier would be given an opportunity to participate in the selection process subject of course to their eligibility in terms of the notified Recruitment Rules and age would not be a bar in case any of them being selected.

PSC would be free to choose experts to judge the relative merit of the contending candidates but no outside experts associated with the selection process should have been associated previously with the Arts and Craft College kolkata in regular teaching or non-teaching assignment.

Thus, ordered, the application before us is disposed of, on contest but without any order as to costs.

(2.)This writ application has been filed assailing said order of the learned tribunal below on many grounds namely (I) in the original application since non-publication of desirable qualification by the Public Service Commission in the advertisement was not pleaded learned Tribunal travelled beyond pleading, (ii) Experts (Advisors) in the field when selected the writ petitioner and when no objection was raised about constitution of the Expert (Advisory) Committee but acceptance of the same by appearance, the respondent No. 4 waived his right to challenge selection made (ill) an un-successful candidate cannot assail the selection process applying the principle of estoppel and waiver (iv) no pleading that any prejudice suffered by any of the candidates for the said post due to non-publication of desirable qualification in the advertisement, hence omission to publish it was not so fatal breach to quash the entire selection process directing de-novo selection after proper advertisement.
(3.)Affidavit-in-opposition of the writ application was filed by respective parties namely, the respondent No. 4, the original applicant of the Tribunal application and by the Public Service Commission and affidavit-in-reply was filed by the writ petitioner. This Court directed production of records by the Public Service Commission and in terms of direction records relating to selection process was produced.