A.K. Samantaray J.

1. In this writ petition under Articles 226 and 227 of the Constitution of India the Petitioner has approached this Court challenging the entire selection process to the post of Headmaster and has prayed for quashing the selection/appointment to the post of Headmaster, Secondary Board High School, Cuttack.

2. The fact situation on which the Petitioner has filed this writ petition is that she is serving as a Trained Graduate Science Teacher in the Secondary Board High School (hereinafter referred to as the School) with effect from 28.7.1976 and she is also the Headmaster-in-charge of the said school since 1.12.2003. Opposite party No. 1 (Secretary, Board of Secondary Education, Orissa, Cuttack) issued an advertisement inviting applications from eligible candidates for the post of Headmaster of the School. The said advertisement is quoted as under:

BOARD OF SECONDARY EDUCATION, ORISSA, CUTTACK-1

ADVERTISEMENT No. 5922 (Spl. Estt.)

Date: 10.11.03

Applications are invited from the eligible candidates in plain paper with complete bio-data for the post of Headmaster, Secondary Board High School, Cuttack in the scale of pay of Rs. 6500-200-10,500/- with usual DA and other financial benefits as prescribed by the Board from time to time.

The applicant should be a Trained Graduate having previous experience as Headmaster/Asst. Teacher in any recognized/Govt. (New)/Govt. (old) High School for a period of at least 20 years as a trained graduate teacher.

An applicant in service should apply through proper channel. Retired/re-employed persons need not apply.

The last date for receipt of application by Registered post or in person is 30.11.2003. The application received after the due date shall not be entertained. The authority will not be responsible for any postal delay. The application should be sent to the Establishment Officer, Board of Secondary Education, Orissa, Post: Bajrakabati Road, Cuttack-753001.

Sd/- HN. Das Secretary

The eligibility criteria in the advertisement (Annexure-3) were (i) the applicant should be a Trained Graduate having previous experience as Headmaster/Assistant Teacher in any recognized/Govt. (New)/Govt. (old) High School for a period of at least 20 years and (ii) an applicant in service should apply through proper channel. Petitioner has stated that she is a Postgraduate in Mathematics and has passed B. Ed. examination with distinction in the year 1974 and M. Ed. examination in 1976 being placed in the 1st division and her date of joining in the said school is 28.7.1976 and she is the senior most Trained Graduate Teacher in the school. She has further stated that after retirement of Ch. S.C. Das, Headmaster of the school, the Petitioner has taken over charge of Headmaster on 30.11.2003. A.N. and she has filed the copy of the Office Order dated 28.11.2003 to that effect (Annexure-2). O.P. No. 3, who is an Assistant Teacher, joined on 23.8.1978 against Trained Graduate Science post and he is 3rd Trained Graduate Teacher after the Petitioner and Smt. Sakuntala Mohanty.

O.P. No. 1 vide letter No. 6520 (Spl. Estt.) dated 4.12.2003 called upon the intending candidates to appear before the Selection Committee on 15.12.2003 at A.M. for an interview with original certificates noted therein (Annexure-5). The interview letter issued to the Petitioner is quoted as under:

BOARD OF SECONDARY EDUCATION, ORISSA, CUTTACK. No. 6520 (Spl. Estt.) Date: 4.12.2003

From : The Establishment Officer, Board of Secondary Education, Orissa, Cuttack. PIN : 753001.

To

Smt. Kumudini Jee, Asst. Teacher S.B. High School, Cuttack.

Sub : Interview for the post of Headmaster, Secondary Board High School, Cuttack

Ref : This Office Advertisement No.5922 (Spl. Estt.)

Dt. 10.11.2003.

Sir/Madam,

1. You are requested to appear before the Selection Committee for an interview for the post of Headmaster, Secondary Board High School, Cuttack on 15.12.2003 at 11 A.M. in the Head Office of the Board of Secondary Education, Orissa at Bajrakabati Road, Cuttack.

2. No. T.A./D.A. shall be paid to your for attending the said interview.

3. Before interview, you shall be required to produce the following original documents for verification.

(i) H.S.C. Certificate

(ii) B.Ed. Certificate

(iii) Experience Certificate as a trained graduate teacher from the concerned Inspector of Schools/competent authority.

(iv) "NO OBJECTION" Certificate from the employer.

(v) Certificates of other educational qualifications as furnished in the application.

(vi) Two recent passport size photograph duly attested by a Gazetted Officer.

Yours faithfully, Sd/-4.12.2003 Establishment Officer B.S.E. Orissa, CTC

On 15.12.2003 fifteen applicants appeared for the interview. Except the Petitioner and O.P. No. 3 who are teachers of the school, the rest of the candidates were outsiders who had applied in response to the advertisement Annexure-3. Before commencement of the interview the Petitioner produced all the original documents and her passport size photograph, the true copies of experience certificates dated 4.12.2003 and no objection certificate dated 12.12.2003 issued by O.P. No. 1 (Annexure-6 and 7). The Selection Committee for the interview consisted of six members such as (1) Vice-President of the Board, (2) Secretary of the Board, (3) Sri Bholanath Padhi (member, Executive Committee), (4) R.N. Mohanty (member, Executive Committee) of the Board and (5) Sri D.K. Ray and (6) Dr. Kulamani Samal. Though the applicants were called for interview only, the Selection Committee adopted a totally different procedure, than decided by the recruiting authority, on the spot and asked the applicants to sit for written examination suddenly when they reported for interview.

3. Rule being issued, the opposite parties entered appearance. O.Ps. 1 and 2 filed counter affidavit through the Secretary, Board of Secondary Education Orissa (O.P. No. 1) and O.P. No. 3 filed his separate counter affidavit. In reply to paragraph 16 of the writ petition it has been stated that since filling up the post of Headmaster of the school was decided to be done through open advertisement, the decision is bona fide and there was no mala fide intention behind it. It has also been stated that the Petitioner has not shown any reason as to how O.P. No. 3 was not suitable for the post of Headmaster and that any undue favour was shown to him in the matter of selection. As to the averments in paragraph 22 in the writ petition it has been stated that as per the decision of the Selection Committee, written test and viva voce test were conducted for selection to the post of Headmaster school on 15.12.2003 and after the tests a merit list was prepared by the selection Committee taking into account the over all performance of the candidates including the Petitioner. It is admitted that on 30.12.2003 an agenda was placed before the Executive Committee of the Board for approval of the selection made by the Selection Committee. But the matter was deferred to a future date by the said Executive Committee and on 9.1.2004 the Executive Committee approved the recommendation of the Selection Committee and after approval appointment was made to the post of Headmaster appointing O.P. No. 3 as the Headmaster. Finally, it is stated by O.Ps. 1 and 2 in the said counter affidavit that no illegality, arbitrariness or mala fide has been committed by the authorities in the matter of selection to fill up the post of Headmaster of the school. O.P. No. 3, apart from all those above mentioned contentions has averred further that the Petitioner without any objection to the advertisement issued by O.P. No. 1 vide Annexure-3 to the writ petition, not only submitted her application through proper channel by obtaining permission from O.P. No. 1 vide Annexure-7 and also the experience certificate Annexure-6, but also actively participated in the interview. O.P. No. 3 was also a candidate along with other outside candidates and the Petitioner and the Selection Committee consisting of high officials of the Board and eminent educationists conducted the selection adopting the said selection process for all candidates and the said committee selected O.P. No. 3 for appointment to the post of Headmaster. He has further stated in the counter affidavit that at no point of time the Petitioner had raised any objection to the procedure adopted by the Selection Committee and willingly participated in the selection process. In paragraph 16 of the counter O.P. No. 3 has stated that the Petitioner having participated in the selection without protest and since she was unsuccessful in getting the appointment to the post of Headmaster, she is estopped to raise any allegation about the constitution of the Selection Committee as well as the norm of selection adopted by it. Finally, he has stated that such a controversy which was brought before this Court in OJC No. 1154 of 1978 in the case of Haladhar Biswal v. Board of Secondary Education, Orissa, Cuttack and Anr. this Court has already settled the principle and put at rest the controversy raised by the Petitioner in that case.

4. Mr. S.K. Das, learned Counsel appearing for the Petitioner submitted with reference to Annexure-3, the advertisement dated 10.11.2003 issued by O.P. No. 1, that in the said advertisement there is stipulation that applicant in service should apply through proper channel and pursuant to the said stipulation the Petitioner offered herself as a candidate vide Annexure-4 and annexed her bio data as stipulated in the said Annexure-3. She also obtained her experience certificate from O.P. No. 1 pursuant to the stipulation in the advertisement Annexure-3 and through Annexure-5 she was requested to appear before the Selection Committee for interview for the post of Headmaster of the School on 15.12.2003 at 11 A.M. in the head office of the Board of Secondary Education, Orissa, Cuttack with her original documents for verification. The learned Counsel brought to our notice Annexure-7 addressed to the Petitioner by O.P. No. 1 permitting her to appear in interview for the post of Headmaster of the School pursuant to her application dated 6.12.2003. The learned Counsel argued that Annexures 5 and 7 are two documents which are admittedly issued by O.P. No. 1 specifically speak about the interview the Petitioner was to appear in. It is the case of the Petitioner that there was no whisper anywhere in any communication that the Selection Committee departing from the above norm of test was going to conduct a written examination on some specific subjects like essay writing, solution to mathematical problems and there was also no whisper that the candidates were to be asked to deliver public speech. He vehemently argued that in the letter Annexures 5 and 7 there is clear mention about the interview and when the Petitioner arrived at the stipulated place at the stipulated time after the verification of the original documents the candidates were asked to sit for written test giving no time for the Petitioner or anyone to raise any objection to that at that moment and in that circumstance the Petitioner attended the written test that was suddenly adopted and held. As we find the recruiting authority decided to make selection on the basis of interview only which was as per the stipulation in the intimation letter. This mode of recruitment could not have been change by the Selection Committee, which exceeded its jurisdiction by adopting a different norm in supercession of the norms/mode fixed by the recruiting authority.

5. Mr. Das, learned Counsel for the Petitioner drew our attention to the settled principle of law that once norms were published in the advertisement or intimated through intimation letter to all concerned whether it could be changed at a later stage without notice to any of the candidates and general public, after the process of selection started. The process of selection in the changed norms without any such prior notice to be held to be violative of Article 16 of the Constitution. It is the duty of the Recruitment Authority to give necessary information to all in a precise and clear manner. He relied on principle of law laid down by the Division Bench decision of this Court reported in Vol. : 100 (2005) CLT 465 (Ms. Madhumita Das and Anr. v. State of Orissa and Ors.) wherein it has been held as under:

In the above mentioned facts and circumstances and the law laid down by the Apex Court, this Court has come to the conclusion that once selection process was started the norms fixed in the advertisement could not have been changed and if they were liable to be changed then the same should have been published in the like manner in which initial advertisement was published. Non-publication of the norms changed subsequently after starting of the selection process was violative of Article-16 of the Constitution and thus is not sustainable in the eye of law.

Relying on the aforesaid settled principle learned Counsel Mr. Das argued that in the case at hand throughout it was intimated to the candidates that an interview for the post of Headmaster of the school be held on 15.12.2003 at 11 A.M. and suddenly on the very same date the Selection Committee changed the norm and decided to hold written examination in addition to the interview. He argued that no intimation or information was given to the candidates regarding this change of norm of the tests and they were asked to appear in the written test which is no doubt a departure from the norm of the recruitment process and such departure from the already advertised/intimated process to be adopted for the recruitment is violative of Article 16 of the Constitution of India and as such on this ground only the selection made by the Selection Committee for the post of Headmaster is liable to be quashed.

6. Learned Counsel appearing for the opposite parties 1 and 2 to counter the contentions of the learned Counsel for the Petitioner submitted that the Petitioner after she willingly participated in the written test which was adopted as one of the norms for testing the suitability of the candidates cannot turn around and challenge the same because she became unsuccessful. In this connection, he cited a decision of the apex Court reported in : AIR 1995 SC 1088 [LQ/SC/1995/195] (Madan Lal and Ors. v. State of Jammu and Kashmir and Ors. We have carefully gone through the said decision and we find that it has no application to the case at hand because in that case a candidate taking a calculated chance appeared at the oral interview having qualified in the written test and after being declared unsuccessful at the interview the candidate challenged the said interview test as unfair which their Lordships in the apex Court negatived as assignment of marks is exclusive domain of export committee. Here in this case the candidates were only called upon to appear in the interview the plain meaning of which is an oral examination of an applicant for a job. The Selection Committee here has admittedly changed the norms of selection by suddenly changing the norm of test and introducing written test, which they could not have done, without prior notice to the intending candidates.

7. Mr. Das, further submitted that after giving her attendance before the Selection Committee changed norms were dislosed when she was asked to sit for written examination. After that she had no option to go back which is evident from the fact that the Selection Committee on the date of interview only, decided to hold written test also and drew a lengthy proceeding and the candidates were required to give their attendance at 11. A.M. on the date as per the interview letter/intimation. We find sufficient force in this contention and hold that there is clear violation of Article 16 of Constitution.

8. During the course of hearing, learned Counsel for O.P. No. 1 as per our direction produced the file pertaining to the test/examination conducted on 15.12.2003 by the Selection Committee, to examine the principles adopted for the said selection. The modalities adopted by the Selection Committee is reproduced her in below for better assessment and appreciation of the matter at hand:

Selection of Headmaster of Secondary Board High School, Cuttack

Date of Interview: 15.12.2003 Venue : Chamber of the President, BSE, Orissa, Cuttack

Principles of Selection:

The Selection Committee set the following principles for conducting the interview:

1. The Committee decided to allot career marks only at the graduation level and B. Ed., since these are the basic qualifications relevant to the post.

Marks allotted: B.A./B.Sc./B.Com. 1st. Class (Hons) 2nd Class (Hons) Pass Distn. 6 4 3 1 B.Ed. 1st Class (Hons)/1st Class/Divn. Below 1st Class/Pass 3 2

2. A brief test both in English and Oriya will be conducted to assess the candidates competence in writing skill, since this is essential to assess the candidates communication skill, organization of thoughts and ideas. Each brief test in English and Oriya will carry a maximum of 10 marks, i.e., the complete test will carry 20 marks.

3. The viva-voce and interview will carry 20 marks.

4. The over-all assessment will center around the suitability of the candidate for the post of Headmaster. Due care would be taken to identify the candidates personality, communicative competence, knowledge in the subject matter and administrative ability. In general, the candidate should have innovative ideas to take academic leadership for the development of the school.

Sd/- 15.12.03. Dr. Harihar Sahoo Vice-President and Chairman

Sd/- 15.12.03. Dr. Kulamani Samal Member

Sd/-15.12.03 Dr. D.K. Ray Member

Sd/-15.12.03. Dr. Bholanath Padhy Member

Sd/-15.12.03 Shri R.N. Mohanty Member

When Selection Committee totally changed the norms on the date of interview how could the Petitioner get a chance to challenge the same or not to participate in the Selection. Moreover, the norms adopted by the Selection Committee for written test and interview were not publicized also, as such it was not open to challenge at that time.

9. From the aforesaid principles adopted by the Selection Committee in the matter of selection of Headmaster it is crystal clear that 20 marks have been allocated for the written test and 20 marks for the interview and as such out of the total mark of 40 reserving 20 marks for interview it becomes 50%, of total mark for oral interview.

10. This allocation of 50% of marks towards interview is certainly in the higher side and arbitrary and contrary to the guidelines fixed by the Apex Court and is furthermore violative of equality clause of the Constitution. In this connection, the apex Court in R. Chitralekha v. State of Mysore : AIR 1964 SC 1823 [LQ/SC/1964/20] ; A Peeriakaruppan v. State of Tamil Nadu AIR 1971 SC 2393; Nishi Maghu v. State of Jammu and Kashmir (: AIR 1980 SC 1975 [LQ/SC/1980/250] ), Ajay Hasia v. Khalid Mujib Sehravardi (: AIR 1981 SC 487 [LQ/SC/1980/459] ) and Koshal Kumar Gupta v. State of Jammu and Kashmir (: AIR 1984 SC 1056 [LQ/SC/1984/100] ) are relevant and we would briefly quote the observations of the apex Court made in some of the aforementioned decisions. In Ajay Hasias case (supra) it has been laid down that where selection is made on the basis of written test followed by interview, allocation of more than 50% of the total marks for interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. Their Lordships in the said decision observed as follows:

We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, caliber and qualification.

11. In the context of selection for appointment to public service, viz., Rajasthan Judicial Service, the question was considered by the apex Court in Lila Dhar v. State of Rajasthan (AIR 1981 SC 1779). Under the relevant rules selection was to be made on the basis of a written examination carrying 300 marks and viva-voce examination carrying 100 marks. There was thus allocation of 25% of the total marks for viva-voce examination and the apex Court upheld the allocation to be valid making a distinction between selection for the purpose of admission to a college and selection for appointment to service and it was observed as under:

If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force tore given to performance in the written examination. The importance to be attached to the interview test must be minimal. That was what was decided by this Court in Peeriakaruppan v. State of Tamilnadu (: AIR 1971 SC 2303 [LQ/SC/1970/380] ), Ajay Hasia v. Khalid Mujib Sehravardi (: AIR 1981 SC 487 [LQ/SC/1980/459] ) (supra) and Ors. cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons.

It was further observed in the said decision-

It was now well recognized that while a written examination assesses a candidates knowledge and intellectual ability, an interview test is valuable to assess a candidates overall intellectual and personal qualities, while a written examination has certain distinct advantage over the interview test there are yet no written tests which can evaluate a candidates initiative, alterness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much depending on the constitution of the interview Board.

In the case of Ashok Kumar Yadav v. State of Haryana (: AIR 1987 SC 454 [LQ/SC/1985/200] ) the selection for the Haryana Civil Service (Executive) and interview. The allocation of marks for interview was 33.3% in the case of ex-service officers and 22.2% in the case of other candidates. After quoting the observations of Chinnappa Reddy, J in Lila Dhars case (: AIR 1981 SC 1777 [LQ/SC/1981/346] ) (supra), it has been observed by the Court as under:

The competitive examination may be based exclusively on written examination or it may be exclusively on interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case... It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may be posts and appointments where the only proper method of selection may be by a viva voce test.

Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them ... There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to been entrusted and a host of other factors. It is essentially a matter for determination by experts. The Court does not posses the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy, J. in Lila Dhars case (AIR 1981 SC 1779) "exaggerated weight has been given with proven or obvious oblique motives.

In Ashok Kumar Yadavs case (supra) the apex Court has held that in case of ex-Service Officers viva voce test may be attached relatively greater weight because the personality of such officers being fully mature and developed it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva voce test. But at the same time this,Court felt that the allocation of 33.3% marks for viva voce test for ex-Service Officers and 22.2% for other candidates was excessive and that the same should not exceed 25% for ex-Service Officers and 12.2% for other candidates.

12. Applying the aforesaid decision in Ashok Kumar Yadavs case (supra) the apex Court has held that in the matter of selection for two posts of Excise and Taxation Inspectors on the basis of written test and viva voce test where candidates are fresh from college/school the allocation of marks for viva voce test should not exceed 15 percent.

In the case of Munindra Kumar v. Rajiv Govil (1991 AIR SCW 1069) the said percentage was maintained for interview and group discussion. It was held that allocation of marks for interview and group discussion should not exceed 10% and 5% respectively.

In the case of Peeriakaruppan v. State of Tamil Nadu (supra) where 75 marks out of the total of 275 marks were allocated for oral interview the apex Court observed that the marks allocated for the interview were on the higher side. It was also observed by the Apex Court in the case of Nishi Maghu (supra) that "reserving 50 marks for interview out of a total of 150... does seem excessive, especially when the time spent was not more than 4 minutes on each candidate.

It has been observed in the case of Ajay Hasia (supra) that there can be no doubt that allocating 33.1/3% of the total marks for oral interview is plainly arbitrary and unreasonable and further observed as under:

We must therefore, regard the allocation of as high a percentage of 33.1/3% of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained.

13. In the instant case, as we find the Selection Committee has allocated 50% of the total mark towards viva voce test which in view of the principle laid down by the Apex Court is beyond all reasonable proportion and it is not only arbitrary but also illegal and is violative of Article 14 of the Constitution.

14. Therefore, changing of norms by the Selection Committee on the date of interview after giving attendance by the candidates to appear in the interview to take written test also superseding the norms fixed by the recruiting authority duly publicised and intimated in the intimation letter mentioning the mode of selection on the basis of interview only, was in our opinion beyond the jurisdiction of the Selection Committee and further allocation of equal marks for interview to the written test was bad in law and for these reasons the whole selection is vitiated under law and as such is liable to be quashed.

15. In view of the facts and propositions of law discussed above the impugned selection and consequential appointment of opposite party No. 3 is quashed.

16. The writ petition is allowed.

B.P. Das, J.

17. I agree.