25 Jan 2121

A mere possibility of abuse of a provision does not by itself justify its invalidation - Gauhati High Court

Case : Ms. Kabyashree Dutta and Anr v. Sri Rahul Tamuli And Ors. WA/337/2019

Court : Gauhati High Court

Bench : Chief Justice Sudhanshu Dhulia and Justice Mr. Suman Shyam

Decided on : 25 Jan 2121

The Relevant Statutes

Regulation 6 of the Assam Energy Development Agency Service Regulations, 2015

Brief Facts & Procedural History

1. The present appeal filed against the judgement and order dated 04/10/2019 passed by the learned Single Judge of this Court in WP(C) No. 3158/2017, by which the writ petition was allowed setting aside the selection and appointment of the private respondent nos. 6 and 7 in the writ petition, who are now before this Court in appeal. The order passed by the learned Single Judge is a combined order passed in three writ petitions, viz. WP(C) 3157/2017, WP(C)6719/2018 and WP(C) 3158/2017. However, since the present matter only relates to WP(C) No. 3158/2017, the facts which would be stated here will pertain only to WP(C) No. 3158/2017.

2. Brief facts of the case are that Assam Energy Development Agency (hereinafter referred to as AEDA) which is a Government body and an authority as contemplated under Article 12 of the Constitution of India, had issued an advertisement dated 26/10/2016 inviting applications from eligible candidates for two posts of Junior Scientific Officer. Out of the two posts (with which we are presently concerned), 1 (one) is unreserved and 1 (One) was reserved for OBC or MOBC. The eligibility criteria were that the candidate should not be less than 18 years of age and not more than 43 years of age as of 01-01-2016.

3. As per the educational qualification, a candidate must be a Bachelor of Engineering/Technology in Electrical/Electronics/Mechanical with uniform and excellent academic career and further the candidates must have experience in renewable energy field during their course or later would be preferred. Thereafter, the process of selection was also advertised, which broadly prescribed that the first step would be that the candidates would be shortlisted and only the shortlisted candidates will then be called for the written test and the date of the written test will be intimated individually and also through the website.

4. It was also stated that the venue and time of the written test, practical test as well as viva-voce would be fixed by the authority and would be notified in due course. The selection to the aforesaid posts was to be made in accordance with the Service Regulations, 2015, which is known as Assam Energy Development Agency Service Regulations, 2015.  

5. The learned Single Judge had the writ petition was allowed and the appointment of the two junior Scientific Officers was quashed. It held that the procedure adopted for the selection process was not a fair procedure for below reasons:

6. There was the likelihood of bias as they were already aware of marks obtained by each candidate in the written examination while they were evaluating the same candidate for the viva-voce.

7. One member from the selection committee who was a professor from Tezpur University and one of the candidates who had been selected (appellant No. 1) had studied at Tezpur University for her M. Tech.

The Issue of the Case

Whether the judgement and order of the learned Single Judge dated 04/10/2019 passed in WP(C) No 3158/2017 which quashed and the appointment of the two junior Scientific Officers should be set aside?

The Observations of the Court

1. The Honourable Gauhati High Court referred to the case of Ramesh Chandra Shah Vs. Anil Joshi, reported in (2013) 11 SCC 309, the Apex Court has observed that: “18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.”

2. The Honourable Gauhati High Court observed that regulation 6 of the Assam Energy Development Agency Service Regulations, 2015 allowed the selection committee to have the knowledge of marks of the candidates in the written test.  The Honourable Gauhati High Court referred to Mehmood Alam Tariq Vs. State of Rajasthan reported in (1988) 3 SCC 241, the Apex Court reiterated the above position that a mere possibility of abuse of a provision, does not, by itself, justify its invalidation. “ The validity of a provision must be tested with reference to its operation and efficiency in the generality of cases and not by the freaks or exceptions that its application might in some rare cases possibly produce. The affairs of government cannot be conducted on principles of distrust.” [Mehmood Alam Tariq Vs. The state of Rajasthan, para 24]

3. The Honourable Gauhati High Court held that the settled position of law, all the same, is that where bias is alleged there should be “a real danger of bias”, as different from “a mere apprehension of bias”. Mere apprehension of bias will not vitiate the entire selection process, as was the case at hand. [Kumaon Mandal Vikas Nigam Ltd vs Girja Shankar Pant & Ors reported in (2001) 1 SCC 182 and Chandra Prakash Singh and others Vs. Chairman, Purvanchal Gramin Bank and others reported in (2008) 12 SCC 292].

The Decision Held by the Court

1. The Honourable Gauhati High Court allowed the appeal.

2. The Honourable Gauhati High Court set aside the judgement and order of the learned Single Judge dated 04/10/2019 passed in WP(C) No 3158/2017.

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