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- Special issues
With the availability of progressive means and technology, Public Service Commissions should not be hesitant in adopting the most recent methods for making the selection process less cumbersome and free of avoidable disputes.
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IT is a sad reality today that almost every public service appointment made goes through endless rounds of litigation. It is also not a disputed fact that the State is the largest litigant. Service matters occupy the largest space in the writ branches of High Courts throughout the country. The blame for pendency falls on courts time and again, and no one tries to dig out the solution to the issue of lack of an alternate mechanism to resolve appointment and service matters. Addressing such structural issues comes with a high risk of opening a Pandora's Box that no judge would wish upon the judiciary.
Advancement in technology has forced the system to display transparency in the selection process for public posts that are filled on merit after written examinations and interviews. It all begins when the answer key for the examination is released. Objections are invited against them, and when not accepted by the examination authority, writ petitions flood the gates of the high court challenging these answer keys. More often than one can imagine, even the simplest of questions are not only wrongly answered, but the objections raised by participants are not easily accepted. In case disputed questions are removed, everyone gets the benefit, disturbing the fair balance of distribution of marks.
“More often than one can imagine, even the simplest of questions are not only wrongly answered, but the objections raised by participants are not easily accepted. In case disputed questions are removed, everyone gets the benefit, disturbing the fair balance of distribution of marks.
An example of the flawed marking was displayed in a bunch of matters decided in February by a division bench of the Punjab and Haryana High Court in the case of Shubdeep Kaur versus State of Haryana & Ors. (2022), with five similar petitions. Here, the question in dispute was also a part of a previous examination, wherein the answer was different from what the examination authority had declared in the present examination. The petitioners contended the previously decided answer to be correct. The Court thus held,
"While reiterating the settled proposition of law that the cases wherein challenge has been laid to the answer key, the writ Court is only to see whether the process of selection is fair and above board, we find that consistency at the end of examining body is also one of the facets of fairness. The Court is duty bound to see that the procedure adopted in evaluation of the answer scripts is not arbitrary, unreasonable and inconsistent. Once the examining body has held 'B' to be the correct answer to the afore-reproduced question in earlier exam, the same examining body cannot be allowed to change the answer in the subsequent exam in the absence of a legally sustainable explanation." [emphasis supplied]
In case the authority or the court appoints an expert committee to decide the correct answers to disputed questions, the biggest bar on the court is that it is helpless if it is not satisfied with the view of the expert committee. The Supreme Court has, time and again, emphasised that high courts should exercise great restraint in deciding the correctness of an answer in an examination, and only experts of the respective field can do so. This is discussed in further detail below.
“In case the authority or the court appoints an expert committee to decide the correct answers to disputed questions, the biggest bar on the court is that it is helpless if it is not satisfied with the view of the expert committee.
Another issue that throngs courts is that of disputed determination of body measurements, especially in cases of recruitment to disciplinary forces. Sit in a writ court that is dealing with appointment matters of the police force, and you would be amazed at the number of petitioners approaching courts for incorrect measurement of height/chest. These petitioners sometimes pursue litigation even after a decade of the selection process, deriving interpretation of rules at their own whims and fancies.
A remarkable order came from the Punjab and Haryana High Court in April in Naveen Kumar versus State of Haryana & Ors., where the issue was decided in the most distinctive manner by elucidating the grammar of the Police Rules by a single judge bench of Justice Jaishree Thakur, who noted that:
"In English grammar the word 'to' is a preposition. The proposition 'to' can be used to indicate a destination or direction, it can be used with verbs such as give, hand, send, write, to indicate the person or thing that receives or experiences the object of the verb, it can be used in telling time when we refer to the number of minutes before the hour. The words in the advertisement '83 Centimetre (unexpanded) to 87 Centimetre (expanded) for the General Category' and '81 Centimetre (unexpanded) to 85 Centimetre (expanded) for the Reserve category candidates' must be read as indicative that the minimum chest measurement unexpanded is 81/83 centimetres and has to be expanded upto 85/87 centimetres. A difference of 4 centimetres has to be there."
To discourage the pursuance of frivolous litigation where petitioners seek height/chest re-measurement, Justice Thakur passed another order worthy of mention last month in Pardeep Sharma versus State of Haryana & Anr., wherein the petitioner was directed to deposit a sum of one lakh rupees with the High Court Registry, before the constitution of a Hospital Board for re-measurement. In case the measurement of the petitioner does not match the claim, the entire amount would go to 'Poor Patients Fund' of the hospital, else it would be refunded to the petitioner.
As disappointing as it sounds, despite all attempts to maintain transparency and merit within examinations, corruption and nepotism seep in through the minute holes in the lid of fairness that attempts to cover the drain of entrenched fraudulent practices. What is worse is that participants alleging manipulation of the process seldom have evidence to substantiate their claims. Years pass before the petitioner gets an actual hearing, and even if we take the slightest chance of the claim being proven, the havoc of scrapping the selection process after a prolonged time would amount to sinking deeper into the ocean in an attempt to reach the shore.
“The lack of rules pertaining to interviews aside, there is not even a single judgement that issues directions, even of an advisory nature, pertaining to fair conduct of interviews or allocation of marks for specific aspects. As such, it is not difficult to manipulate interview marks in order to favour specific desired candidates.
The claimed transparency of the process seems like a facade when the interview comes into the picture. When we give a viva during college and university assessments, specific marks are allotted for speech, presentation, term progress, and so on. This fair approach to the distribution of interview marks, however, does not find any place in the interview mechanism devised by the Public Service Commision. The lack of rules pertaining to interviews aside, there is not even a single judgement that issues directions, even of an advisory nature, pertaining to fair conduct of interviews or allocation of marks for specific aspects. As such, it is not difficult to manipulate interview marks in order to favour specific desired candidates without having to answer anyone or raise grounds for questioning.
Also read: Right to Appointment for Public Duty
One of the principles of natural justice is 'Nemo judex in causa sua', a dictum that translates to "no one should be a judge in their own cause". Therefore, the alternative to courts' intervention cannot be found in a departmental committee to resolve such matters. Observation of the State replies would show that the attitude of the examination authority is like a kabaddi player who won't give up despite being caught by all members of the opposite team. Admitting fault or negligence is not a strong point of even the best of human beings, let alone a commission; therefore, departmental introspection would amount to nothing more than a wastage of time and resources. Courts don't run on justice; they run on law, and the law gives everyone a right to defend themselves in consonance with principles of natural justice.
As for remedies available to the Court, a major drawback of constituting an expert committee to decide the answers to disputed questions is that courts don't have the power to adjudicate on the correctness of an answer. This has been held by the Supreme Court in a catena of judgments:
The best the high court can do is to order the constitution of a fresh committee (as done in Richal & Ors. versus Rajasthan Public Service Commission (2018)), but the Supreme Court strongly condemns the high courts acting as experts and adjudicating upon the correctness of an answer as it stated in West Bengal Central School Service Commission & Ors. versus Abdul Halim & Ors. (2019) that "the High Court in exercise of jurisdiction under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention under Article 226 of the Constitution of India."
One way to mitigate litigation in this area is established by the doctrine of estoppel that bars a candidate from coming to court when they have participated in the selection process. This straightaway puts a bar on a plethora of ignorant petitioners who try to take their chances either way to get into the pool of candidates contesting for a post. However, this too has an exception, as established in Dr. (Major) Meeta Sahai versus State of Bihar & Ors. (2019) by the Supreme Court. In its judgment, the court held that a candidate will not be estopped from challenging a selection process on the ground of having participated in it when there is an allegation of "misconstruction of statutory rules and discriminating consequences arising therefrom". The court, while agreeing with the contention of estoppel, noted:
"The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection challenges it in the hope of getting a second chance"
Adding on, it makes an important clarification:
"However we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where the candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The Constitutional scheme is sacrosanct and its violation in any manner is impermissible." [emphasis supplied]
“Courts cannot adjudicate upon the correctness of an answer, but why should this keep them from making an observation when a question of extreme simplicity is answered wrongly on the face of it by the expert committee?
The doctrine of estoppel does discard many frivolous petitions. But is it all that courts should rely on, while shutting their eyes to the burden and pendency of cases being multiplied like compound interest, by innumerable other ways that service matters flood courtrooms?
Courts cannot adjudicate upon the correctness of an answer. But why should this keep them from making an observation when a question of extreme simplicity is answered wrongly on the face of it by the expert committee? To aid this approach and reform the current redressal mechanism for disputed questions, directons need to be laid by the Supreme Court along the following lines:
English writer, historian and politician Lord Acton said, "Power corrupts and absolute power corrupts absolutely"; this axiom can find meaning in every sphere of life. In my view, the Public Service Commission that is responsible for conducting government appointments needs to undergo periodic rotation of office bearers. However, the Commission is a Constitutional body and the appointment, term and removal of any member cannot be made except through the procedure established in Articles 315–319 of the Constitution. But reform in its policies is not so barred because policy-making is one of the chief functions of the Commission under Article 320. There is always scope for improvement, and with progressive means and technology, the commission should not be hesitant in adopting the most recent methods for making the selection process less cumbersome and free of avoidable disputes. An additional independent body can also be constituted for recommending such reforms in policies and grievance redressal methodology.
In the matter of re-measurement in Pardeep Sharma, the approach of the Punjab and Haryana High Court was no doubt astute, but imagine if there actually were specific rules in place to deter such petitions or a cap on the number of times a participant can get the body measurement redone; courts wouldn't have to waste their invaluable time and resources in dealing with these matters. More so, if imposition of costs on frivolous and repetitive petitions without a fresh cause was a norm instead of an exception, a vast number of inane petitions would be nipped in the bud.
With regard to service matters apart from appointments, one guardian angel that courts have so far not utilised to its full potential are the Wednesbury Principles that can be relied upon to refuse interference in departmental orders and punishment. It has been held by the Supreme Court that the High Court, in a writ petition, when examining an administrative order, is not exercising appellate power but the power of judicial review, which is much narrower than the appellate power. Judicial review can only be exercised on Wednesbury principles, and the high court cannot itself perform the functions of a statutory authority.
“The High Court, in a writ petition, when examining an administrative order, is not exercising appellate power but the power of judicial review, which is much narrower than the appellate power. Judicial review can only be exercised on Wednesbury principles and the high court cannot itself perform the functions of a statutory authority.
Wednesbury principles are derived from the judgment of the England and Wales Court of Appeal (Civil) in Associated Provincial Picture Houses Ltd. versus Wednesbury Corporation (1947) wherein, in the simplest terms, the court laid down that judicial interference in administrative decisions would only be permissible under any of the following conditions:
In its recent judgement in M/s Indian Oil Corporation Ltd. versus Shri Rajendra D. Harmalkar (2022), the Supreme Court, commenting of the power of high courts of judicial review under Article 226 had upheld this position, stating that the jurisdiction of High Courts under Article 226 or of Administrative Tribunals is limited, and is confined to applicability of one or other of the 'Wednesbury principles'.
In April this year, the Punjab and Haryana High Court asked the states of Punjab and Haryana to list out – "What steps are being taken by the State Government to prevent unwarranted litigation which often takes place due to the casual attitude of its officers and whether any action is taken against such officers?". The single judge bench of Justice Anupinder Singh Grewal noted, while passing an interim order in Himmat Khan versus State of Haryana:
"The impugned order has been passed in a casual manner and in violation of the principles of natural justice. The dockets of the courts are clogged and the State is the largest litigant. If the officers of the State take due care and caution while passing orders at least a part of the litigation could be avoided." [emphasis supplied]
In the very same order, the court directed the Chief Secretary, Government of Haryana, to file an affidavit as to what steps are being taken by the state Government to prevent unwarranted litigation which often takes place due to the casual attitude of its officers, and whether any action is taken against such officers. The affidavit shall also place on record the litigation policy of the state. The Advocate General, Punjab was also directed to apprise the Court of the steps taken by the state of Punjab to prevent avoidable litigation.
The question that remains is whether the demand for a plan to mitigate litigation is enough without a guarantee to put it into place? When shall the Supreme Court wake up to the realisation that with the lack of adequate appointments in the judiciary that the country is facing, we shall never be able to reach a point where pendency of litigation ceases to exist?
Am I praying for a utopian world that is impossible to exist? No. I am seeing through the possibility of a practical world where efforts need redirection in the area of priority. We have adequate means and resources; we cannot hide behind the pretence that we don't. Courts cannot go on to protect the Executive at the cost of misery to the common man. If we are to change the way the world looks at the Indian judicial system, we ought to dive deeper into the depths of Constitution in order to discover a better system that puts our administrative bodies into action in a way that allows the judiciary to function to the best of its ability, and invest time, effort and resources where they are actually required.
