WP(C)/269/2015 of ANIRBAN DASGUPTA Vs THE STATE OF TRIPURA and ORS on 18 December 2015

1. The State of Tripura,

represented by the Secretary-cum-Commission, Public Works|Department, Secretariat Building,|New|Capital|Complex,P.O. Kunjaban, Agartala, West Tripura |

2. Engineer-in-Chnhief

PublicWorksDepartment, Secretariat Building, New Capital|Complex,P.O.Kunjaban,Agartala, West Tripura

3. The Secretary,

TripuraPuUDIICService Commission, having its office at|A.K. Road, near Old Secretariat|Building, Agartala, West Tripura

4. The Chairman,

Tripura Public Service Commission,having its office at A.K. Road, nearOld Secretariat Building, Agartala,West Tripura

5. The Joint Secretary,

5. The Joint Secretary, Tripura Public Service Commission,|having its office at A.K. Road, nearOld Secretariat Building, Agartala,West Tripura

6. Shri Debasish Naha,

son of Dulal Chandra Naha, posted at|Office of the Executive Engineer, DWS|Division, Udaipur, Gomati District,|

P.O. R.K. Pur, Near Old Hospital, PIN-J99120

7. Shri Shibabarata Bardhan,

SON)of|jateSatyabrata|Bardhan,postedal BidyutBhavan,Nortn—Banamalipur, Agartala, West Tripura,|PIN -/7990O0postedal BidyutBhavan,Nortn—Banamalipur, Agartala, West Tripura,|PIN -/7990O0

wii AReSpondents

BEFORETHE HON’'BLE MR, JUSTICE S. TALAPATRA

JUDGMENT & ORDER

By the advertisement No.09/2014 dated 22.07.2014,|Tripura Public Service Commission, the T.P.S.C. in snort, invited|application for three permanent posts (ST-1 & UR-2) of the)Financial Controller (Group-A Gazetted) under the Public Works|Department, Govt. of Tripura in the pay scale of Rs.13,5/5-

37,000/- P.B.-4 with Grade Pay of Rs.4,500/-. Tne essential|qualification and other qualifications as required had been)mentioned in the said advertisement, Annexure-A to the writ|petition. The required qualification is Chartered Accountancy or its|equivalentqualificationfromadrecognizeduniversitywith |minimum 4(four) years’ experience in the audit and accounts|Drancn|of|any|GovernmentDepartment/GovernmentUndertaking/PublicSectorUnitOT|Master|Of|BUSINESSAdministration (MBA) or its equivalent qualification from asrecognized university with minimum of two years’ experience in|theaudit|andaccount|branch.of|any|GovernmentDepartment/Government Undertaking/Public Sector Unit. It was|further provided in the said advertisement that candidates having|experience|In(i) AccountingprocedureIn.PWD/CPWD/CPSUs/State PSUs etc. in Tally Software having:preferable Knowledge of Bengali. There is no dispute that the)petitioner has all those qualifications. The petitioner applied for|tne post as he is having an MBA degree from aé recognizeduniversity. That apart, he has Masters in Commerce and have)experience of working as the Financial Controller on contract basis|w.e.f. 15.12.2007 to 12.11.2012 in the Public Works Department|(PWD) and he has also worked as the Nodal Officer for the said|department for 13[th]Finance Commission related matters. Atpresent, the petitioner has been working as the State Mission|Manager (Finance), under Tripura Rural Livelinood Mission (TRLM)|w.e.f. 25.06.2013 till date. The respondent No.3 by the)

Conclusion

notification dated 25.05.2015 declared the date, time and venue|of the interview for appointment in the said post of Financial|controller under the PWD. Two days after the said notification|dated 25.05.2015 another notification dated 77.05.2015 had been|issued by the PWD-respondents whereby the list of eligible|candidates for the post of Financial Controller was published in the|TPSC weopbsite. The said list contains 11 candidates out of wnhnthere was one candidate from SC category. All the remaining|candidates were from UR category. It has been categorically|mentioned in tne said list that ‘a// other candidates applied for tne|post are ineligible.’ In the said notification dated 27.05.2015,|Annexure-D to the writ petition, the name of the respondent.Nos.6 and 7/7 did not figure but they are allowed to appear in thsaid interview. Even tne T.P.S.C. recommended tneir names for)appointment as the Financial Controller, Group-A (Gazetted)|under the Public Works Department, Govt. of Tripura from tne UR)category. According to the petitioner, for recommending the|names of the respondents No.6 & 7 Dy the notification dated|06.07.2015, Annexure-F to the writ petition, the TPSC has acted|arbitrarily and illegally. As such, the said notification dated)06.07.2015 is liable to be interfered with.

12]The TPSC by filing the counter affidavit has refuted theallegations made by the petitioner. They have categorically statedin Para 5(iti) of their counter affidavit that two candidates namely,|Sri Biswanath Majumder and Sri Debasish Naha not finding their|

names in the list of eligible candidates notified by the TPSC in the)website on 27.05.2015 made representation with their relevant|documents to the TPSC. Tne TPSC found that only for not)submitting the certificates in respect of their experience what they|mentioned in the application, their names could not be included in|the list of eligible candidates notified by the TPSC. In Para-6 they|nave stated as under: |

“TheCommission|receivedrepresentationfrom|SriBiswanath|Majumder on 01.06.2015 and from SriDebasishNaha.on|04.06.2015respectively.After re-verification of thedocuments,the|CommissionWassatisfiedthat|both|the|candidatespossessed the _ requisite qualificatioand experiences at time of submission|of their applications and also confirmedthat there was no additional acquiredqualification or experiences after the|last dateof|suUbDMISSIOof|theapplication for the post of FinancialControllerTherefore,subsequentlythey were added in the eligible list. So,|the|Commissionconsideredthem|eligible for interview and issued call|letters in favour of them on 04.06.2015and 09.06.2015 respectively. Hence, in|total the number of eligible candidates|raised from 11(eleven) to 13(thirteen)|numbers.’|

But they nave not raised any question about theeligibility of the petitioner. —

13]By filing the rejoinder, the petitioner nas stated that|‘this clearly shows the premeditated scheme of respondent|Nos.3,4 & 5.° Some other allegations in respect of holding the)interview have been raised by the petitioner. It would be reflected from the order dated 08.10.2015 that the TPSC has produced the|records covered by the File No.F.11(57-3)Rectt./TPSC/2014. The)seal was broken In the Court and the records were verfieild.

What nas transpired from tne record does not supportthe statement made by the TPSC in Para-6 of their counter|affidavit. Tne advertisement whicn is generated in terms of Note)No.5 of the said file has categorically stated that the candidateswho are the cnartered accountant or naving its equivalent)qualification from the recognized university should have minimum4 years experience in the audit and account brancn of any Govt. Department/Govt. Undertaking/Public Sector Unit or Master ofBusiness Administration (MBA) or its equivalent qualification from|a recognized university with minimum of 2(two) years experience|in audit and account branch of any Govt. Department/Govt.|Undertaking/Public Sector Unit. The further experience as sougnt|is however desirable qualification. From Note No.12 dated)03.06.2015 wnat transpires is as under:

“L(one) representation received from|Sri Biswanath Majumder, S/O- Late|Rudra Narayan Majumder regarding for|reconsideration.for|the|postof|Financial Controller under the Public|Works Department, Govt. of Tripura,|reference|Commission’sAdvt.No.09/2014(item|No.1)dated22.07.2014 which may kindly be seen|vide flag-A.

On_ scrutiny of the Tabulation sheet iappears that Sri Biswanath Majumder,|being Sl. No.22 ts_ ineligible as_perCommissionNoteNo.8.NowSriMajumdersubmittedsupporteddocuments for the aforesaid post and|requested to the Commission, his casemay be considered for interview to thepost of Financial Controller.In view of the above, the file may be}placed before the authority for kind|decision tn this regard.

14]Tnereafter, in Note No.13 dated 03.06.2015 the)following notings are available:

“SriBiswanath|Majumderhassubmitted experience certificate afresh|where it _ is clearly mentioned that possess experience _ in accounts anaudit which is as per R/Rmy In Note No.20 dated 06.06.2015 another noting is available in respect of the respondent No.6 which reads as under:|

“Another1i(one)representation|received from Sri Debasish Naha, S/OQODulal Ch.Naha.regarding.for.reconsideration.for|the|postof|Financial Controller under the Public|Works Department, Govt. of Tripura,|reference|CommissionsAdvt.No.09/2014(item|No.1)dated22.07.2014 which may kindly be seen|vide flag-B. |

On_ scrutiny of the Tabulation sheet iaDDea FSthatSriDebasIisnNana,|bearing serial No.28 is ineligible as perCommission Note No.8. Now Sri Nahasubmittedsupportingaocuments(Departmental) for the aforesaid postand requested to the Commission, hiscase may be considered for _ intervieto the post of Financial Controller.

In view of the above, the file may be}placed before the authority for kind|decision in this regard.”

With reference to Note No.20, the following entry isavailable in tnat file:

“Sri Debasish Naha has submitted an.incomplete application form which_ hiseligibility could not be _ ascertaineNowhe|hassubmittedexperiencecertificateissuedby appropriateauthority and his work experience IS as|per R/R eligibility of Sri Naha may|kindly be decided.’

The said note was given on 06.06.2015. |

15]On scrutiny of theapplication filed by Sri Debasish|Naha, the respondent No.6, it appears that even though he Page 7/7 of2

applied through tne proper channel but while forwarding nis)paper, the department did not enclose the experience certificate. Without the NOC or the experience certificate issued by the)competent authority, the application form cannot be treated)complete for the candidates who are in the service. Tne Director, |Directorate of Audit issued to him the experience certificate after|completion of the departmental formalities much after the last)date. His representation is available in the same file at Page-45.|The certificate of experience was issued in favour of the)respondentNo.6ONnO03.01L.720LFromthe.statement.of.particulars of the candidate as prepared by the TPSC, it would be|apparent that as the applications of two candidates, namely Sri.Udayan Datta and Sri Prasenjit Pal were received after the closing|date, their candidature was not accepted. But in the case of the)respondent Nos.6 & 7, what has transpired is that the formal|application of the respondent No.6 with some documents were)received by the TPSC on 08.09.2014, whereas the last date was)fixed on 23.08.2014. It has surfaced that one experience|certificate of the respondent No.6 dated 03.01.2015 was taken)into consideration and he was declared of having the requisite|experience. The said certificate in the form of memorandum dated|03.01.2015 is available in the file at page-6/7. Similarly, onecertificate dated 22.05.2015 in support of the experience of the)respondent No.7 has been entertained by the TPSC and that.certificate was issued by the General Manager, Tripura State|Cooperative Bank Ltd. on 22.05.2015, which is available at page-

31 of that file. It is really snocking that when the last date of)receiving application in full form expired on 23.08.2014 as clearly|mentioned in Advertisement No.09/2014, Annexure-A to the writ|petition, the said experience certificate dated 22.05.2015 has)been accepted by the TPSC. Thus, the statement of TPSC at Para-6 of the counter affidavit was circuitous in nature as therespondents No. 6 and 7 could not furnisn any experience|certificate of worth at the time of filing the application. On the|basis of the certificates filed afresh much after the last date, they|were declared eligible. Even in tne list snown in the website of the|TPSC their names were not shown as eligible. But they did not|disclose now for purpose of purported re-verification, the requisite|experience, the certificates which were issued much after the last|date of receiving the application could be considered by the TPSC.Is it not an example of compromising with the integrity of the|selection process? As there was no experience certificate with the|applications of the respondents No.6 & 7, the TPSC declared them|ineligible and their names did not figure in the list of eligible|candidates but later on, ‘after so called re-verification’ they were|found eligible. But the corrected list was never published in the)website. Even when the petitioner sought disclosure about how|tnese two persons i.e. the respondents No.6 & 7 were interviewed,|the TPSC did not disclose those facts to the petitioner. The TPSC is|a constitutional body. It is supposed to maintain unimpeachable|integrity of the process and is supposed to keep its process|beyond above all suspicions. The record as produced have)

eloquently pointed out thnat for purpose of interviewing therespondents No.6 & 7, the TPSC did not maintain the integrity of tne process. As already stated as tne referred two applications|were received belatedly, they were never considered but the)respondents No.6 and 7/7 have been allowed to insert nedocuments, as identified and indicated, in their applications. This|Court cannot shut its eyes to such process.

From the Note No.12, it clearly transpires that how the.process was compromised. There it has been noted that on)scrutiny of the tabulation sneet it appeared that Sri Biswanath|Majumder bearing Sl. No.22 is ineligible as per Commission NoteNo.8. Thereafter, Sri Majumder was permitted to submit!Supporting documents for the aforesaid post and on his|representation, the Commission has reconsidered nis case. He was|declared eligible and permitted to appear in the interview for the|post of Financial Controller. The said note was given on.03.06.2015. Similarly, from the Note No.20 it would also appear|tnat on scrutiny of tne tabulation sneet it appears tnat Sri)Debasish Naha bearing S!/. No.28 is ineligible as per commissionNote No.8. Now Sri Naha submitted supporting documents|(departmental) for the aforesaid post and requested to the)commission, his case may be considered for interview to the post|of Financial Controller. ’

On culmination of the process, both the respondents.No.6 & 7 were interviewed and against the two vacancies in tne|

Page 10 of23|

UR category, the respondents No.6 & 7/7 Nave been recommendeby the TPSC. The said selection and recommendation is under|challenge by the petitioner by means of this petition. —

[6]Mr. P. Dutta, learned counsel appearing for the TPSC-respondents has stated that the TPSC did not compromise with|the integrity of the process. The petitioner submitted those|documents witn their application form. But their impact was not)clear to the TPSC and as such, when they made their experience|intelligible to the TPSC, the respondents No.6 & 7 were treated as)eligible. There is no infraction of their process. The respondents|No.6 & 7 were eligible from the very beginning but for not Navingclear import of their statement, they were not declared eligible.Tnereafter, Mr. Dutta, learned counsel raised a jurisprudential|objection against the petition. According to Mr. Dutta, learned|counsel for the TPSC that the petitioner cannot after appearing in|the interview turn round and challenge the process. The apex.court has in the similar circumstances shot down the petition for|judicial review. In this regard, ne nas referred a few decisions VIZ.|Om Prakash Shukla vs. Akhilesh Kumar Shukla and others,reported in AIR 1986 SC 1043, Madan Lal and Others vs.|State of Jammu and Kashmir and Others, reported in (1995)3 SCC 486, Chandra Prakash Tiwari and Ors. vs. ShakuntalaShukla and Ors, reported in (2002) 6 SCC 127 and Ramesh|Chandra Shah and Ors. vs. Anil Joshi and Ors., reported in|AIR 2013 SC 1613.

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To denote the law decided in those reports, somerelevant passages are reproduced hereunder.

17]In Madan Lal and Ors. Vs State of J & K, reported in 1995(3) SCC 486, the apex court held as follows:

“9. .., lt 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 Isnot palatable to him he cannot turn}round and subsequently contend that|the process of interview was unfair or|Selection Committee was not properly|constituted.

10. Therefore,|the|resultof|the.interview test on merits cannot be successfully challenged by a candidate|who takes a chance to get selected atthe said interview and who ultimately|finds himself to be unsuccessful.”

In Chandra Prakasn Tiwari! & Ors. Vs. Shakuntala Shukla & Ors., reported in (2002) 6 SCC 127, the apex court)neld as follows:

“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 tin the process.”

InRamesh Chandra Shah Vs. Anil Joshi, reported.

in AIR 2013 SC 1613, the Apex Court held as follows “24. In view of the propositions laid|down in the above noted judgments, Itmust be held that by having taken part|in the process of selection with full|knowledge that the recruitment was‘being made under the General Rules,|the respondents had waived their right|to question the advertisement or the}methodology adopted by the Board for|making|selection.and.the|learned|

Page 12 of23|

Single Judge and the Division Bench of the High Court committed grave error|by entertaining the grievance made by|the respondents.”

18]Mr. S. Deb, learned senior counsel appearing for the:respondent No.7 has submitted that not only the petitioner is)estopped from raising the selection after he participated in the)said process but also the scope of judicial review is very limited asit cannot go beyond the examination of the process. The merit of|the decision cannot be assessed. In support of that, Mr. Deb,|jearned senior counse!] relied on a decision of the House of Lordsin Reid vs. Secretary of State for Scotland, reported in 1991 All ER 481 where it nas been held that while exercising the)power of judicial review it is not open to examine the evidence|with a view to forming its own view about the merits of the case. He has also relied on a decision of the apex court in Heinz India|

Pvt. Ltd. and Anr. vs. State of U.P. and Ors,reported in|(2012) 5 SCC 443, where the power of judicial review has beendescribed as neither unqualified nor unlimited. For reference, the|relevant passage tnerefrom are extracted hereunder:

“60. The power of judicial review Is/neither unqualified nor unlimited. It}has its own Iimitations. The scope and|extent of the power that is so very|often invoked has been the subject-matterof|severaljudicial pronouncements within and outside thecountry. When one talks of ‘judicial|review one Is instantly reminded of the|classicanaoftquotedPpaSSsagfromCouncil of Civil Service Unions|(CCSU) v. Minister for the Civil Service|(1984) 3 All ER 935(HL), where Lord|Diplock summed up the permissible|grounds of judicial review thus:

JudicialReviewhas||think|developed to a stage today when,|

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without reiterating any analysis of the|stepsbywhichthe.development has come about, one|Ca NconvenientlyClassifyunderthree heads the grounds on which|administrative action is subject to}control by judicial review. The first|ground I would call ‘illegality’, the|second irrationality and the third|“procedural impropriety.

By‘itegality”as|ground.fOr|Judicial review I mean that the)decision-maker|MUST|understancdcorrectly the law that regulates his|decision-making power and must!give effect to it. Whether he has or|not is par excellence a justiciable|question to be decided, tn the event|of dispute, by those persons, the|judges, by whom the judicial powerof the State is exercisable.

By irrationality I mean what can|by now be succinctly referred to as‘‘Wednesbury unreasonableness.. It|applies to a decision which is so|outrageous in its defiance of logic|or of accepted moral standards that|no sensible person who had applied|his mind to the question to be)decided could have arrived at it.|Whether a decision falis within this|category is a question that judges|by their training and experience|should be well equipped to answer|or else there would be something|badlyWrongwithourJudicialsystem.....

I have described the third head as|“proceduralimproprietyratherthan failure to observe basic rules|of natural justice or failure to act|with procedural fairness towards|the person who will be affected by|the|aecision.ThisIs|because|susceptibilitytoJudicialreviewunder this head covers also failure|by an administrative tribunal to|observe procedural rules that are|expresslylaid.aownthe.legislative instrument by which its|JurisdictionIs|conferred, evenwhere such failure does not involveany denial of natural justice.”

66. That the Court dealing with the)exercise of power of judicial review|does not substitute its judgment for|that of the legislature or executive or their agents as to matters within the|province of either, and that the Court|does not supplant ‘the feel of the}expert’ by its own review, Is also fairly|well-settled by the decisions of this|

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Court. in|all|such|Ca SESJudicialexamination is confined to finding out|whether the findings of fact have ajreasonablebasis on|evidenceanawhether such findings are consistent|with the laws of the land. (SeeUnion ofIndia v. S.B. Vohra : (2004) 2 SCC}150,Shri Sitaram Sugar Co. Ltd. v.Union of India: (1990) 3 SCC 223,andThansingh Nathmal and Ors. vv.Supdt. of Taxes: AIR 1964 SC 1419).

* * * *

49. We may while parting with the)discussion on the legal dimensions of judicial review refer to the following|passage from Reid v. Secretary of Statefor Scotland (1999) 1 All ER 481 HL),|which succinctly sums up the_ legalproposition that judicial review does|not allow the Court of review to'examine the evidence with a view to'forming its own opinion about the)substantial merits of the case.

‘Judicial review involves a challenge to the legal validity of the decision. It|does not allow the court of review to}examine the evidence with a view to'forming.ItsOwnVIEWabout|the|substantial merits of the case. It may|be that the tribunal whose decision is'being challenged has done something|which it had no lawful authority to do.|It may have abused or misused the}authority which it had. It may have}departed from the procedures which|either by statute or at common law as amatter of fairness it ought to have}observed. As regards the decisions|itself it may be found to be perverse or irrational or grossly disproportionate towhat was required. Or the decision maybe found to be erroneous in respect of a legal deficiency, as for example,|through the absence of evidence, or of sufficient evidence, to support it, or|throughaccoun:ybeing.takenofirrelevant matter, or through a failure|for any reason to take account of a}relevantmatter,|OFTthrough|some|misconstruction of the terms of the statutory provision which the decision|maker is required to apply. But while|the evidence may have to be explored|in order to see if the decision ts vitiatecby such legal deficiencies it is perfectly|clear that in case of review, as distinct|from an ordinary appeal, the court may|not set about forming Its own preferredview of evidence.’ "|

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19}In Air India Ltd. vs. Cochin International AirportLtd., reported in (2000) 2 SCC 617, the apex court held asUnder:

“7 sessenessBUt the State, its corporations,instrumentalitiesanaagenciesare|boundtoadheretO|the|norms,standards and procedures laid down by them and cannot depart from them|arbitrarily. Though that decision is not|amenable to judicial review, the Court|Canexaminethe|adecisionmaking_process and interfere if it is found|vitiatecdbymalafides,|unreasonableness|and|arbitrariness.The|State, Itscorporations,instrumentalities and agencies have}the public duty to be fair to _ alconcerned. Even when some defect is'found in the decision making process|the|CourtMUST|exercise|Itsdiscretionary.DOWECFunderArticle 226 with|great|caution|anashould exercise it only in furtherance of public interest and not merely on the}making out of a legal point.|The Courtshould always keep the larger public|interest In mind tn order to decidewhether its intervention is called for ornot. Only when It comes to a conclusionthat|overwhelmingpublicinterestrequires interference, the Court should|intervenemy [10] |In Noble Resources Ltd. vs. State of Orissa andAnr., reported in AIR 2007 SC 119, the apex court restated tnelaw in the following words:

“28. Although the scope of judicial|review or the development of law in|this field has been noticed hereinbefore|particularly in the light of the decision|of|thisCourt|in ABLInternational]Ltd. (supra), each case, however, must|be decided on tits own facts. Publicinterest as noticed hereinbefore, may|be one of the factors to exercise power|of judicial review. In a case where ajpublic law element ts involved, judicial|review may be permissible. [See Binny|Ltd. and Anr. v. V. Sadasivan and Ors. ||(2005) 6 SCC 65/7 andG.B. Mahajan|and Ors. v. Jalgaon Municipal Counciland Ors. : (1991) 3 SCC 91].

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30. Another field where judicial review|is permissible would be when mala fide|or ulterior motives is attributed. InAsia Foundation|andConstructionLtd. v. TrafalgarHouseConstruction India Ltd. and Ors. : (1997) 1 SCC 738,this Court held:

‘..1.We are of the considered opinionthat|itWasnotwithinthe.permissible limits of interference|for a court of law, particularly|when there has been no allegation|of malice or ulterior motive and|particularly when the court has notfound any mala fides or favouritism|in the grant of contract tin favour ofthe appellant....—

It was further held:

‘Therefore, though the principle of|judicial review cannot be denied so far|as exercise of contractual powers of government bodies are concerned, but)it is intended to prevent arbitrariness|or favouritism and it is exercised in the|larger public interest or if it is brought|to the notice of the court that tn the matter of award of a contract power|has been exercised for any collateral|purpose. But on examining the facts|and circumstances of the present case|and on going through the records we)are of the considered opinion that none|of|the|criterliahasbeensatisfiedjustifying Court's interference in the)grant of contract in favour of the}appellant....’”

[11]Mr. Deb, learned senior counsel has submitted that.the experience as gathered by the respondent No.7 was much|before the last date of receiving tne application. As sucn, it cannot|be stated that the essential qualification or the experience was.acquired after the last date. The TPSC has its discretionary power|to take clarification from anyone if there is any confusion or)ambiguity in any document or as to its interpretation. The TPSC)cannot be taken for a ride as in this institution the public trust|resides. It is the sentinel of probity and for that reason its)function has been made so wide as described in Article 3270 of the Page 17 of23|

Constitution of India. By allowing the respondent No.7 to appear|in the interview no prejudice has been caused to the petitioner.|Moreover, the selection and the recommendation as made is.based on comparative merit. The petitioner had taken a calculated|chance, appeared in the interview and thereafter turned round to)contend that the process of interview was unfair.

[12]Mr.S.M..Chakraborty,learned|SenIor.counselappearing for the respondent No.6 has adopted the submissions|of Mr. Deb, learned senior counsel. He has also stated that there|is no allegation of mala-fide and as such, the selection process|may not be interfered by this Court. He has also stated that the)respondent No.6 has been held eligible correctly.

113]Appearing for the petitioner, Ms. R. Purakayasta,|learned counsel has referred a decision in Dr. Amit Sharma vs.|State of J & K and others (the judgment and order dated)09.07.2015 in SWP No.1332 of 2010) where the High Court ofJ &|K disapprove tne decision holding someone eligible after declaringhim ineligible. Ms. Purakayasta, learned counsel has further|submitted that the entire process has been manipulated and such)manipulation is apparent on the face of the notes.

[14]Mr. S. Chakraborty, learned Addl. G.A. has distancedthe.Governmentfromtnecontroversy StatingtnattneGovernment made requisition for appointment in the posts of the|Financial Controller under the PWD and the TPSC has made the|

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recommendation. He has further submitted that the TPSC hasfollowed their process. On examination of the process, if no)infraction is located, the selection may not be interfered with.

115].Having regard to the submissions made py the!learned counsel appearing for the parties, it should be madeabundantly clear that tne petitioner nas failed to make out any)case that the entire process of assessing the comparative merit|nas been visited by mala-fide or illegality. But the issue is not ofcomparative merit but it relates a larger issue how the TPSC has|allowed tne respondents No.6 and /7 participate in tne processafter declaring them ineligible or lay some important papers in|Support of their essential experience. Such action by discretion or|any other consideration is obnoxious, ante-thesis to the fair action and subversive to integrity of the process of the selection. It isunthinkable that an institution like the Public Service Commissioncan take such ride on their own process in such a clandestine|manner. The selection of respondents No.6 & 7 might be)coincidence but it would create an indelible impression that the)process nas been manipulated to select the respondents No.6 & 7)and for that purpose, they were allowed to place some essential|documents which are dated mucn after the last date of receiving|the application. Whether such process can be allowed to survive?|Answer is a definite no. Their action declaring the respondents|No.6 & 7 ineligible was appropriate but later on the basis of so.called re-verification of the experience certificates, which were —

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placed with their application after tne date of interview was.notified when they declared the respondents No.6 and /7 eligible,they indulged in impropriety. Hence, tne TPSC owed ansexplanation. The explanation that has been provided in Para-6 of|tneir counter affidavit is nothing snort of an eye wash. When their|own records were scrutinized the truth sprang out. The truth is nothing but a telling episode of manipulation, inappropriate|interference in the process and an attempt to hide the fact. Public|interest demands that such action is castigated and interfered|with. The PSC has been entrusted with the public examinations for|selection, other assignments including the expanded functions.|Tney cannot compromise the integrity of the process. In Ashok|Kumar Yadav and Others vs. State of Haryana, reported in|AIR 1987 SC 454, the apex court observed having due regard to)the constitutional position of the Public Service Commissions as)Under:

“Before we part with this judgment we)would like to point out that the Public|Service Commission occupies a pivotal|place of itmportance in the State andthe|Integrityandefficiencyof|Itsadministrativeapparatusdepends.considerably on the quality of the}selections made by the Public Service|Commission. It is absolutely essential|that the best and finest talent should|be drawn tn the administration and}administrativeservicesMUST|be|composed of men who are honest,|upright and independent and who are}not swayed by the political winds|blowing in the country. The selection of candidatesfOr|the|administrativeservicesmMmuSthereforebe|made.strictly on merits, keeping In view}various factors which go to make up a}strong, efficient and people oriented|aaministrator. This can be achieved|only if the Chairman and members of the Public Service Commission = ar Page 20 of23|

eminent men possessing a high degree|of calibre, competence and integrity,|who would inspire confidence in the}public mind about the objectivity and|impartiality of the selections to be}made by them. We would therefore Iiketo strongly impress upon every State|Government to take care to see that ItsPublic Service Commission is manned|by competent, honest and independent|persons of outstanding ability and highreputation.whocommandthe|confidence of the people and who}would not allow themselves to be!deflectedbyany|extraneousconsiderations from discharging their|duty of making selections strictly on|merits. Whilst|makingthese|observations we would Iike to make it!clear that we do no for a moment WISN|to suggest that the Chairman and}members of the Haryana Public Service|Commission tn the present case were|lackingcalibre, competenceOF|integrity.”

When the court would jealously guard the Public)Service Commissions independence at the same time the court)would not hesitate to stem out the rot.

[16]The jurisprudential objection as raised based on)tne doctrine of estoppel is entirely misplaced. Prerequisite of|estoppels is constructive knowledge and legality. Both these|elements are mutually inciusive. In Raj Kumar and Ors. Vs)Shakti Raj and Ors., reported in (1997) 9 SCC 527, the apex.court neld as follows: |

“16. .......:. ([t is true, as contenShri Madhava Reddy, that this Court in|Madan Lal v. State of J and K, (1955) 3SCC 486 : (1995 AIR SCW 1109) and}other decisions referred therein had|held that a candidate having taken ajchance to appear in an interview and|having remained unsuccessful, cannot|turn round and challenge either the|constitution of the Selection Board or!the method of selection as being illegal;he|Is|estopped.tO|question.the|correctness of the selection.|But tn his|case, the Government have committedglaring tllegalities in the procedure to Page 21 of23|

get _ the candidates for examinatiunder 1955 Rules, so also _in_themethod of selection and exercise of thepower _in_ taking out from the purviof the and also conduct of the selectionaccordancewiththe.Rules.Therefore, the principle of estopped by conduct.OF|acquiescencehasna|application to the facts in this case.my 117] |Similarly, in Nar Singh Pal Vs Union of India and.Ors., reported in (2000) 3 SCC 588, the apex court held as)TOHWOWS :

“sae. Fundamental Rights under the)Constitution cannot be bartered away.|They cannot be compromised nor can}there be any estoppel against the)exercise|of|FundamentalRightsavailable under the Constitution. AS'pointed out earlier, the termination of the appellant from service was punitive|in nature and was in violation of the}principles of natural justice and his)constitutional rights. Such an order|cannot be sustained.”

[18]The cumulative impact of that observation is that theselection of the respondents No.6 & 7 through the impugned|process cannot be sustained inasmuch as unless the certificate or|document.of|experiencewhichwereacceptedaftertherespondents No.6 and / were declared ineligible, are considered|the respondents No.6 and 7 admittedly would not be declared|eligible. Such acceptance was not only clandestine, Dut also was.manuvoured to get the respondents No.6 and 7 declared eligible.However, this observation has nothing to do with the comparativemerit. Such gross and inappropriate interference has subverted|substantially the integrity of the process. The TPSC has/unexpectedly compromised with their process. Hence, the)recommendation of the TPSC selecting the respondent Nos.6 & 7/

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Dujay|

is set aside and quasned. The respondent Nos.l & 2 are)prohibited from acting thereon. However, the TPSC may hold the|selection afresh. In that event, the petitioner and the respondents|No.6 & 7 shall be entitled to participate along with other eligiblecandidates for appointment to tne post of the Financial Controller|in the Public Works Department, Govt. of Tripura.

[19]In the result, the writ petition is allowed to the extent|as indicated above.

A copy of tne file aS produced by the TPSC under tnesealed cover shall be maintained with the perennial records. Only|tne court naving jurisdiction will break open tne same. The)Original records as produced by the TPSC are returned under the|sealed cover.

No order as to costs. |

JUDGE|

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