TRIVEDI HIMANSHU GHANSHYAMBHAI v. AHMEDABAD MUNICIPAL CORPORATION AND ORS

Citation: [2007] 10 S.C.R. 1041

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, P. SATHASIVAM

Case summary

TRIVEDI HIMANSHU GHANSHYAMBHAI v. AHMEDABAD MUNICIPAL CORPORATION AND ORS.pdf

Judgment text

j TRIVEDI HIMANSHU GHANSHYAMBHAI v. AHMEDABAD MUNICIPAL CORPORATION AND ORS. OCTOBER 10, 2007 [TARUN CHATTERJEE AND P. SATHASIVAM, JJ. ] Service Law: Eligibility Condition-Appointment for the post ofAssistant Manager-Written examination and Interview-Appointment of Appellant as Asst!.

Manager who was serving as Technician but also discharging administrative duties-Whether experience possessed by the appellant could be considered as administrative experience to satisfy eligibility condition-Held: Officer supervising work performance ofthe appellant certifying that the experience possessed by him was administrative in nature-No objection raised by respondents-unsuccessful candidates at the time of issuance of Certificate nor atthe time ofselection-Even the administrative nature of the experience possessed by the incumbent duly endorsed by employer-Corporation-Besides, it was duly considered by Examination Committee while scrutinizing the applicationform before permitting him to appear in the written test-Interview Committee also considered the experience requirement and satisfied that the experience possessed by him was administrative in nature-In the past, many employees holding technical posts promoted to administrative posts-Under the circumstances, the High Court not justified in holding that the experience possessed by the incumbent could not be considered as administrative experience-Moreover, it was not open to respondent Nos.

2 & 3 to challenge the selection ofthe appellant merely because their names did not appear in the merit list-High Court was not justified in exercising its power under Article 226 of the Constitution by granting reliefto the writ petitioners-respondents- Only because the records ofmarks obtained by candidates could not be produced by the employer-Corporation, the appointment of incumbent could not be cancelled only on this ground-Constitution ofIndia, 1950-Article 226. Appellant was appointed as an X-Ray Technician in a Hospital run under the supervision and control of Ahmedabad Municipal Corporation. In the Hospital, the appellant, apart from discharging his duty as an X-ray Technician was also, regularly carrying out the clerical and administrative work in the Hospital. On 13th of November, 1997, a circular was issued by the Corporation inviting applications for appointment for the post ofAssistant Manager from amongst the qualified existing employees ofthe Corporation.

The appellant, forwarded his application in the prescribed form for appointment for the post of Asstt. Manager through the Supervising Officer. The application form, was duly scrutinized and the appellant was found eligible. Accordingly, Corporation directed him to appear for a written test. On the basis of performance and marks scored, 58 candidates, including the appellant and respondents 2 and 3 were selected and they appeared for an oral interview. The appellant was declared successful and he was appointed as Assistant Manager on a probation for a period of one year. Challenging the legality and validity ofthe appointments to the post ofAssistant Manager made by the Corporation, a writ petition was filed by respondent Nos. 2 and 3, the unsuccessful candidates, in the High Court. Single Judge ofthe High Court held that the appointment ofthe appellant by the Corporation was bad, illegal and invalid and quashed it.

Aggrieved, the appellant challenged the judgment ofthe Single Judge, which was dismissed by the Division Bench of the High Court. Hence the present appeal. The core question that needs to be decided in. this appeal was as to whether the appellant fulfilled the requirement of ten years administrative experience for appointment for the post ofAssistant Manager. Allowing the appeal, the Court HELD: 1. 1. It was only after scrutiny by the respective heads AHMEDABAD MUNICIPAL CORPN. ofthe departments that the candidature ofemployees, including the appellant, was forwarded to the Corporation for permitting them to appear in the written test and ifsuccessful, for an oral interview. In this case, there is no dispute that the application form ofthe appellant was duly signed by the Medical Officer who had endorsed and certified that the appellant was eligible to sit in the written test and ifsuccessful, in the oral interview, as he had fulfilled the requisite requirements.

A bare perusal ofthe form filled in by the appellant would clearly show that he had satisfied the condition of ten years experience on the administrative side. The certificates of administrative experience, in favour ofall the candidates falling in C the technical category, were issued by the Medical Officer ofHealth and countersigned by the Medical Officer-in-charge ofMunicipal Referral Hospital. In so far as the appellant was concerned, the medical officer in-charge of the Municipal Referrel Hospital, under whom the appellant was working as an X-ray technician, issued the certificate on 10th ofMay, 2000, which was placed before the High Court in the writ petition. [Para 6] [1051-A-D] 1. 2. From the experience certificate issued to the appellani, it would be evident that the appellant was having administrative experience, even though he was working as an X-ray technician.

The E stand taken by the Corporation before the High Court was also to the effect that the appellant had satisfied the requirement of ten years administrative experience and, therefore, he could be appointed as an Assistant Manager. [Para 6] [1053-B, C] 1. 3. The application form ofthe appellant was forwarded by the Medical Officer under whom he was working, endorsing his signature thereon and thereby approving that the appellant was having more than ten years experience on the administrative side as well. Even ifan objection is raised that the certificate dated 10th of May, 2000 issued by the Corporation cannot be looked into G because it was issued at the time when the writ petition was already pending and not at the time of selection before the selection committee, even then, the endorsement and approval ofthe Medical Officer, underwhom the appellant was working, was duly made and . ~~ therefore cannot be overlooked.

In categorical terms, the Corporation had taken the stand before the High Court that in so far as the technicians are concerned, no clerks were appointed and therefore, the clerical/administrative work was also required to be done by the technicians. Apart from the experience certificate, which enlisted the different administrative duties performed by the appellant, the endorsement in the application form by the Medical Officer approving the nature ofadministrative work performed by the appellant and forwarding the duly scrutinized form to the c1 rporation, would clearly show that the appellant was performing ministrative work for more than ten years in the Corporation. The said form was then examined and scrutinized by the Committee, which conducted the written test and thereafter, permitted the appellant to appear in the written examination for the post in question.

The application form was also placed before the Interview Committee, which had conducted the oral interview ofthe appellant. It may be mentioned that the oral interview was conducted by a Five Member Interview Committee consisting of members, who are all respected persons of the society. The five member interview committee, which consisted ofeminent persons ofthe society, would not have allowed the appellant, who is a technical hand, to appear before them without first satisfying themselves that the appellant had possessed ten years administrative experience. [Para 7] [1054-A-G; 1055-A) 1. 4. Even the candidates namely, the writ petitioners- 1 , respondents 2 and 3 herein did not raise any objection, by making a prayer, either before the examination committee or before the interview board, that the appellant lacked the requisite ·. administrative experience for selection to the post in question. [Para 7) [1055-C] 1. 5.

From the record, it also appears that in the past, many persons, who were holding technical posts were promoted to administrative posts and subsequently have been further promoted. That apart, the corporation, at the time ofinviting applications for appointment to the post in question, had never stated that the persons AHMEDABAD MUNICIPAL CORPN. i of technical cadre should not apply. On the contrary, the circular dated 13th of November 1997 clearly stated that candidates ofall the departments were qualified to apply, on fulfilling the requirements as laid down in the Circular. [Para 7] [1055-D, E, F] 1. 6. The High Court has quashed the appointment of the appellant only, although, the corporation had appointed seven other candidates, holding such technical posts.

Therefore, the High Court was not right in holding that the administrative experience enlisted by the appellant in his application form, duly endorsed by the Medical Officer, could not be considered as an administrative experience of over ten years and therefore, the appointment ofthe appellant should C be cancelled. In any view ofthe matter, it is not for the courts to find out whether a candidate, from the technical side, was having administrative experience often years when he applied for the post of Assistant Manager as it is found that the manual of the Corporation clearly states that it was the sole discretion of the Municipal Commissioner to consider as to which post was technical or administrative.

The High Court had failed to appreciate that the corporation, being the employer, is the best judge to decide whether the appellant had discharged the responsibilities on the administrative side and once the corporation came to a finding that the appellant had discharged not only the duties of an X-ray technician but also performed clerical/administrative work, particularly in view of the admitted fact that since 1984, no post of clerks was created in the Beherampura Referral Hospital, the High Court was not justified in concluding that the appellant did not possess the administrative experience of more than ten years. [Para 7] [1056-A-E] 2. 1. Respondent Nos. 2 and 3 cannot be permitted to raise the objection at this stage after the appellant was selected along with G the other selected candidates. It was open to the respondents 2 and 3 to raise such an objection at the initial stage, either in the written examination or at the time of the oral interview.

Such objection was raised, for the first time, by the respondents 2 and 3, after the appellant successfully completed four months in his capacity as an H ~\ \ Assistant Manager. [Para 7] [1055-F, G] r 2. 2. Only because the names ofrespondents 2 and 3, who were the writ petitioners before the High Court, did not figure in the merit list, it was not open to them to challenge the selection list and the appointment ofthe appellant before the High Court. [Para 8] [1056-F, G] 2. 3. Only because the respondents 2 and 3 could not get selected and named in the final merit list, as a result oftheir combined performance, both in the written test as well as in the oral interview, they challenged the appointment ofthe appellant and other selected candidates by moving the writ petition. Under the circumstances, the High Court was not justified in exercising its power under Article 226 ofthe Constitution by granting relief to them. [Para 9] [1057-A, B] Madan Lal and Ors. v. State ofJ & Kand Ors.

, [1995) 3 SCC ,. ( 486, relied on. 2. 4. The High Court was neither justified in interfering with the appointment ofthe appellant by holding that he did not possess the requisite administrative experience of ten years while working as an X-ray Technician nor was it open to the High Court to entertain the writ petition challenging the appointment ofthe appellant and other selected candidates at the instance of the unsuccessful candidates. [Para 10) [1057-E, F] 1~ 2. 5. It is true that the records relating to the marks obtained by the candidates in the written test as well as the oral interview could not be produced before the High Court because they were lost and thus not available. However, in the absence ofany material on record, the contention ofthe counsel appearing for respondent Nos. 2 and 3 that the records were not produced by the Corporation due '("' I to malafide intention, cannot be accepted. [Para 11} [1059-A, B] Alocious Fernandezv.

Union ofIndia, in JT (1992) SC 169 and Atul Khuller and Ors. v. State ofJ & Kand Ors. , [1986] Suppl SCC 225, referred to. TRIVEDI HIMANSHU GHAN SHYAMBHAI v. 1047 AHMEDABADMUNICIPALCORPN. [CHATTERJEE,J. ] 2. 6. The Single Judge ofthe High Court, while allowing the writ petition, on consideration ofthe entire materials on record, came to a finding that in the absence ofany specific averment of malafides against the Members of the Committee holding the interview test, it was neither possible to strike down the result ofthe interview nor would it be proper to conclude that the Corporation had conducted the interview in an illegal or unlawful manner. The same view is also endorsed by this Court holding that only because the records could not be produced in view of the fact that they were lost and not available, the appointment of the appellant could not be cancelled, particularly when no mala fide had been attributed by the writ petitioner-respondents 2and 3 in the writ petition.

[Para 11] [1059-C, D, E] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4760 of 2007. From the final Order and Judgment dated 5. 7. 2006 ofthe High Court ofGujarat at Ahmedabad in LP. A. No. 623 of2006 in S. C. A. No. 4364/ 2000. Meenakshi Arora and Poli Kataki for the Appellant. Mahendra Anand, H. S. Parihar, Kuldeep Parihar, Amar Dave and E. C. Agrawala for the Respondents. The Judgment ofthe Court was delivered by TARUN CHATTERJEE, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated 5th of July, 2006 passed by a Division Bench of the High Court of Gujarat at Ahmedabad affurning the order ofthe learned Single Judge holding that the appointment ofthe appellant as an Assistant Manager in Ahmedabad Municipal Corporation [for short 'the Corporation'] was bad, illegal and invalid and accordingly, liable to be quashed. 3.

Before we deal with the question raised before us, we may narrate the facts involved in the present case leading to the filing of this appeal. 4. The appellant was appointed as an X-Ray Technician in Beherampura Referral Hospital, run under the supervision and control of the Corporation on 1st ofFebruary, 1988. In the Referral Hospital, there was no post ofclerks since 1983. Since 1984, the appellant, apart from discharging his duty as an X-ray Technician was also, regularly and compulsorily, carrying out the clerical and administrative work connected therewith.

According to the appellant, the administrative activities carried out by him, inter alia, included: [i] taking X-ray of the patients; [ii] collecting fees for X-ray; [iii] entering the amount received in the cash -( book; [iv] preparation ofthe case papers; [v] maintaining of the register of the patients whose X-ray is taken; [vi] maintaining the record ofthe purchase ofX-ray films; [vii] purchase ofX-ray films; [viii] to fill in the octroi fom1s and V'fon11S; and [ix] maintain X-ray date stock register and audit the same and several such activities which were purely administrative in nature. On 13th ofNovember, 1997, a circular, viz. , Circular No. 80 was issued by the Corporation inviting applications for 19 posts of Assistant Manager from amongst the qualified existing employees ofthe Corporation. The aforesaid circular clearly specified that an eligible candidate should be a graduate with second class from any recognized university with ten years ofadministrative experience.

The circular also provided that preference would be given to candidates holding a degree in law or any other higher degree. The appellant, in pursuance of the aforesaid circular of the Corporation dated 13th of November, 1997, applied for appointment to the post ofAssistant Manager in the presc1ibed form, which was forwarded through the Medical Officer of the Corporation under whom he was working. 1be said fonn, filled in by the appellant, was duly scrutinized and after it was found that the appellant was eligible, the same was sent to the Corporation for consideration. Accordingly, the Corporation, thereafter, directed the appellant to appear for a w1itten test. A mode ofselection was prescribed by the Corporation, which comprised a two-tier system, namely a written test of 150 marks and a viva-voce test of 50 marks. The written test was conducted under the supervision oflndian Institute ofManagement, Ahmedabad.

On the basis of performance and marks scored, 58 candidates, including the appellant and respondents 2 and 3 were selected and . asked to appear for an oral interview. The oral interview was conducted by a Five Member A. Interview Committee comprising (i) Municipal Commissioner, Ahmedabad; -f (ii) Prof. Pestonjee, Indian fastitute ofManagement, Ahmedabad; (iii) Dr. N. R. Dixit, Director, Som Lalit Institute and visiting faculty oflndian Institute of Management, Ahmedabad; (iv) Deputy Municipal Commissioner [Finance]; and (v) ChiefAuditor, Municipal Corporation, Ahmedabad. From the above, it would be evident that barring two members, the remaining members ofthe Interview Committee were the employees of the Corporation. Therefore, it cannot be said that all the members ofthe interview committee were under the employment ofthe corporation.

The Corporation prepared a merit list ofthe candidates, with their qualifications and date of appointment in the Corporation, on the basis of their performance in the oral interview before the aforesaid Committee and also in the written examination. The appellant figured at SL No. 4 in the merit list and was shown to possess degrees in B. Sc. and LLB and his date ofappointment in the Corporation was shown as 17th ofMay, 1984. On 22nd ofDecember, 1999, a resolution was adopted by the Corporation, whereby, it was communicated to the selected candidates that they had been appointed as Assistant Managers on probation for a period ofone year in the scale of Rs. 8000-275-13500 and that after completion ofthe probation period, their appointments would be made acting on the basis of report of their performance. As the appellant was figUiing at SL No. 4 ofthe said resolution, he was posted in the engineering department against the vacancy ofone Lokendre Singh Rathod.

Challenging the legality and validity ofthe appointments, to the post of Assistant Manager, made by the Corporation by its resolution dated 22nd of December, 1999, a writ petition was filed by the respondents 2 and 3 in the High Court ofGujarat at Ahmedabad wherein, the appellant was arrayed as respondent No. 3. Since, in this case, we are concerned only with the appointment ofthe appellant, which has been set aside by the High Court by the impugned judgment, we feel it proper to refer only to the case ofthe appellant. In the writ petition, it was, inter alia, alleged, by respondents 2 and 3 herein, against the appellant that he was working as an X-ray Technician which is purely a technical post having nothing to do with administrative work and accordingly, the requirement as to ten years experience on the administrative side for appointment to the post of Assistant Manager was not fulfilled.

In view ofthe aforesaid, the respondents 2 and 3 herein prayed for setting aside the appointment of the appellant to the aforesaid post of Assistant Manager. A learned Single Judge ofthe High Court allowed the writ petition, which was affirmed by the Division Bench, thereby quashing the appointment of the appellant to the post of Assistant Manager in the Corporation. 5. The core question that needs to be decided in this appeal is whether the appellant fulfilled the requirement often years experience on the administrative side for appointment to the post ofAssistant Manager. As noted herein earlier, according to respondents 2 and 3, the appellant was not qualified for being appointed to the post ofAssistant Manager in as much as he was working in the technical department as a technical hand and accordingly, the condition often years administrative experience could not be said to have been fulfilled in his case. 6.

Before we deal with this question, we may state that respondents 2 and 3, who had challenged the appointments ofthe appellant and other selected candidates, were themselves unsuccessful and their names did not figure in the merit list as they had failed to pass the oral interview. Therefore, it is an admitted position that challenge to the appointment of appellant, to the post ofAssistant Manager, was made by candidates who were themselves unsuccessful in the examination. Keeping this fact in mind, let us now proceed to consider whether the High Court was justified in setting aside the appointment ofthe appellant as an Assistant Manager in the Corporation. As noted herein earlier, although the appellant was 1 .. ,_ working as an X-ray Technician, he claimed that he had the requisite experience often years on the administrative side as well.

To substantiate his claim, he has pointed out a munber ofadministrative duties performed by him while working as an X-ray Technician and which have already been narrated by us herein earlier. It may be noted that for the purpose ofapplying for the post in question, the candidates were required to fill in forms, which were to be forwarded by the heads of their departments 'f4 under whom they were working. Each form was required to be scrutinized by the respective head and only after being satisfied that a candidate was having more than ten years administrative experience, he was to make an endorsement in the application form and approve the same for being /~ I forwarded to the corporation. Therefore, from the above, it would be i evident that it was only after scrutiny by the respective heads of the departments that the candidature ofemployees was forwarded to the Corporation for permitting them to appear in the written test and if successful, for an oral interview.

In this case, there is no dispute that the application form, ofthe appellant was duly signed by the Medical Officer who had endorsed and certified that the appellant was eligible to sit in the written test and ifsuccessful, in the oral interview, as he had fulfilled the requisite requirements. As noted herein earlier, a bare perusal ofthe form filled in by the appellant would clearly show that he had satisfied the condition of ten years experience on the administrative side. The certificates ofadministrative experience, in favour ofall the candidates falling in the technical category, were issued by the Medical Officer of Health and counter signed by the Medical Officer-in-charge ofMunicipal Referral Hospital, Behrampura, AMC.

In so far as the appellant was concerned, the medical officer in-charge of the Municipal Referrel > Hospital, Behrampura, AMC, AM (Health), under whom the appellant was working as an X-ray technician issued the certificate on 10th ofMay, 2000, which was placed before the High Court in the writ petition. The certificate runs as under: "It is hereby certified that Shri Himanshu Ghanshyambahi Trivedi is rendering service since last 12 years at Health Department as X-ray technician. Since 22nd December, 1999 as per the GDEST 8313, he is holding the post ofAssistant manager in the higher grade )o as well as fro the same date he has attended Engineering (Project) Division. By the Health Department in the city ofAhmedabad five referral hospitals are run, Since 1983 referral hospitals began and since then no post ofclerk is opened. Therefore, the technicians in each division as to compulsorily discharge the duties as technicians as "1' well as administrative clerk.

As a X-ray technician he has to perform the following administrative duties. (i) He has to perform the duty oftaking X-ray ofthe patient. From each patient as per the rules ofthe Corporation he has to collect ·~ \ the money and issue receipt as well as to enter those amount collected in the case paper. (ii) He has to prepare X-ray register in which he has to record the ·name ofthe patient whose X-ray is taken. (iii) He has also to maintain the book and enter therein the details ofthe X-ray plates and X-ray films purchased by him and also to enter in the register the X-ray used by him and also to prepare the expense book, submit the same for audit by the Corporation and also to answer any queries regarding the same. (v) He has also to maintain X-ray date stock register and that is also audited from time to time and the responsibility ofauditing is also upon him.

(vi) The X-ray technician is holding independent charge and therefore, in his department he is responsible for reparation as well A. as for proper maintenance and also has to maintain other such registers. Thus for the records ofthe X-ray department as well as ofother departments, he is responsible. ,, (vii) That in the X-ray department need also arises for the sale of old X-ray films for which he has to contact the part whom the corporation has approved and thereafter as per the rules of the corporation he has to sell the old X-ray filings, collect money from him and issue receipt thereofand deposit the amount so collected with the Corporation. All these responsibilities are to be shouldered by him. Thus X-ray technician has to discharge the obligation and has also to perform other duties. Over and above that he has also been discharging the administrative duties and works aforesaid compulsorily.

He has discharged technical as well as administrative duties diligently, honestly and satisfactorily. Till date has not allowed any complaint ofany sort in his department. He holds a good moral A' character. Sci/- Medical Officer-In-Charge Municipal Referred Hospital, Behrampura, AMC AM (Health) Health Officer" From the aforesaid certificate, it would be evident that the appellant was having administrative experience, even though he was working as an X-ray technician. The stand taken by the Corporation before the High Court was also to the effect that the appellant had satisfied the requirement ... as to ten years administrative experience and, therefore, he could be appointed as an Assistant Manager. In so far as the appellant was concerned, the CorjJoration in paragraph 9 of the affidavit, filed before the High Court, stated as under: "It is alleged that one Mr.

Trivedi Himanshi is X-ray Technician and therefore ought not to have been selected on the ground of lack ofadministrative experience. It is stated that Mr. Trivedi is holding the qualification ofB. Sc. and LLB plus course ofRadiology Branch. It is stated that Mr. Trivedi is working as X-ray Technician since 1984 and he is responsible not only the technical work, but also for clerical and administrative work ofthe said department. It is stated that there is no clerk in . '> the Radiology Department of the Hospital and X-ray # ' Technician has to do clerical work and has to work as an Administrative help qua the administration for maintaining the records about working of the Radiology Department. " (Emphasis supplied) 7. Before the High Court, an affidavit in reply was also filed by the appellant along with the other selected candidates, inter alia, stating that !

the only allegation made against the appellant was to the effect that he was a man oftechnical cadre and lacked administrative experience and that it was put to rest by the certificate dated 10th of May, 2000 issued by the Corporation. It may be noted that the certificate dated 10th of May, 2000 was issued by the Corporation, at a time, when the writ petition ·twas pending before the High Court. But, it must also be remembered that the application fonn ofthe appellant was forwarded by the Medical Officer under whom he was working, endorsing his signature thereon and thereby approving that the appellant was having more than ten years experience on the administrative side as well.

Even ifan objection is raised that the certificate dated 10th ofMay, 2000 issued by the Corporation cannot be looked into because it was issued at the time when the writ petition was already pending and not at the time ofselection before the selection committee, even then, the endorsement and approval of the Medical Officer, under whom the appellant was working, was duly made and therefore cannot be overlooked. In categorical terms, the Corporation had taken the stand before the High Court that in so far as the technicians are concerned, no clerks were appointed and therefore, the clerical/ administrative work was also required to be done by the technicians.

Apart from the aforesaid certificate, which enlisted the different administrative duties performed by the appellant, the endorsement in the application form by the Medical Officer approving the nature of administrative work performed by the appellant and forwarding the duly scrutinized form to the corporation, would clearly show that the appellant was performing administrative work for more than ten years in the Corporation. The said form was then examined and scrutinized by the Committee, which conducted ~e written test and thereafter, permitted the appellant to appear in the written examination for the post in question. The application form was also placed before the Interview Committee, which had conducted 1 i 't the oral interview ofthe appellant. It may be mentioned, as noted herein earlier, that the oral interview was conducted by a Five Member Interview Committee consisting of(i) Municipal Commissioner, Ahmedabad; (ii) Prof.

Pestonjee, Indian Institute ofManagement, Ahmedabad; (iii) Dr. N. R Dixit, Director, Som Lalit Institute and visiting faculty ofIndian Institute of Management, Ahemdabd; (iv) Deputy Municipal Commissioner [Finance]; and (v) ChiefAuditor, Municipal Corporation, Ahmedabad who are all respected persons of the society. The five member interview committee, which consisted ofeminent persons ofthe society, would not have allowed the appellant, who is a technical hand, to appear before them with out first satisfying themselves that the appellant had possessed ~ J TRIVEDI HIMANSHU GHANSHYAMBHAI v. 1055 ten years administrative experience.

Ifthe administrative experience shown in the application fonn could not be treated as a sufficient compliance with the requirement as to ten years experience on the administrative side, the interview committee, being an expert committee, could have rejected the candidature of the appellant on the ground that he did not possess the requisite administrative experience for appointment to the post ofAssistant Manager in the corporation. That apart, on the question ofadministrative ) experience ofthe appellant, who was working as an X-ray technician, no objection was raised either by the Examination Committee which conducted the written examination or by the Interview Board which conducted the oral interview.

Even the candidates namely, the writ petitioners-respondents 2 and 3 herein did not raise any_objection, by making a prayer, either before the examination committee or before the interview board, that the appellant lacked the requisite administrative experience for selection to the post in question. After scrutinizing and considering the application fonns ofall the candidates, they were directed to appear in the written test and thereafter, those who were found to have passed the written examination were directed to appear before the Interview Board for an oral interview. From the record, it also appears that in the past, many persons, who were holding technical posts were promoted to administrative posts and subsequently have been further promoted. T'nat apart, the corporation, at the time ofinviting applications for appointment to the post in question, had never stated that the persons oftechnical cadre should not apply.

On the contrary, the circular dated 13th of November 1997 clearly stated that candidates of all the departments were qualified to apply, on fulfilling the requirements laid down in the circular. The writ petitioners-respondents 2 and 3 herein cannot be permitted to raise the objection that the appellant could not have been considered for appointment, he being a technical hand without any administrative experience, after the appellant was selected along with the other selected candidates. It was open to the respondents 2 and 3 to raise such an objection at the initial stage, either in the written examination or at the time of the oral interview. Such objection was raised, for the first time, by the respondents 2 and 3, after the appeliant successfully completed four months in his capacity as an Assistant Manager (his promoted post in the corporation).

That apart, it appears from the ~ judgment of the High Court that the High Court has quashed the appointment ofthe appellant only, although, the corporation had appointed seven other candidates, holding such technical posts. Therefore, we are unable to agree with the High Court that the administrative experience enlisted by the appellant in his application form, duly endorsed by the Medical Officer, could not be considered as an administrative experience ofover ten years and therefore, the appointment ofthe appellant should be cancelled. In any view ofthe matter, it is not for the courts to find out whether a candidate, from the technical side, was having administrative experience often years when he applied for the post ofAssistant Manager . as we find that the manual ofthe Corporation clearly states that it was the sole discretion ofthe Municipal Commissioner to consider as to which post wastechnical or administrative.

In our view, the High Court had failed to appreciate that the corporation, being the employer, is the best judge to decide whether the appellant had discharged the responsibilities on the administrative side and once the corporation came to a finding that the appellant had discharged not only the duties ofan X-ray technician but also performed clerical/administrative work, particularly in view ofthe admitted fact that since 1984, no post of clerks was created in the Beherampura Referral Hospital, the High Court was not justified in concluding that the appellant did not possess the administrative experience ofmore than ten years. 8. As noted herein earlier, respondents 2 and 3 who had filed the writ petition before the High Court, challenging the appointment ofthe appellant were themselves unsuccessful in the examination, even though they claimed that they had passed the written examination but failed in the interview.

Since the names ofrespondents 2 and 3; who were the writ petitioners before the High Court, did not figure in the merit list, in our view:, . it was not open to them to challenge the said selection list and the appointment ofthe appellant before the High Court. 9. It is not in dispute that the respondents 2 and 3 as well as the appellant were all found eligible, in the light ofthe marks obtained in the written test, to be called for the oral interview. Up to this stage, there was no doubt. The Respondents 2 and 3 and the appellant appeared before the Committee constituted by the corporation for conducting the . TRIVEDI HIMANSHU GHANSHYAMBHAI v. I057 oral interview. The respondents 2 and 3 could not clear the oral interview and were not selected whereas the appellant was found successful and accordingly, selected.

Therefore, there cannot be any dispute that only because the respondents 2 and 3 could not get selected and named in the final merit list, as a result oftheir combined performance, both in the written test as well as in the oral interview, they challenged the appointment ofthe appellant and other selected candidates by moving the writ petition. Such being the position, we are ofthe view that the High Court was not } justified in exercising its power under Article 226 ofthe Constitution by granting relief to the writ petitioners, who are now respondents 2 and 3 in this appeal. As we are ofthe opinion that the appellant did possess the administrative experience often years required for selection to the post ofAssistant Manager in view ofthe varied nature ofwork performed by him while working as an X-ray Technician, we do not find any reason to take a view, different from the one taken by the Corporation and the Selection Committee.

Therefore, we are ofthe view that it was not open to the respondents 2 and 3 to challenge the appointment ofthe appellant and other selected candidates, as they were themselves unsuccessful in the test. In this connection, reliance can be placed on a decision ofthis Court in the case of Madan Lal and Ors. v. State ofJ & Kand Ors. , [1995] 3 sec 486. 10. Accordingly, we are ofthe view that the High Court was neither justified in interfering with the appointment ofthe appellant by holding that he did not possess the requisite administrative experience often years while working as an X-ray Technician nor was it open to the High Court to entertain the writ petition challenging the appointment ofthe appellant and other selected candidates at the instance of the unsuccessful candidates. 11. Before parting with this judgment, we may deal with a short submission ofthe learned counsel appearing on behalfofthe respondents 2 and 3.

It is an admitted position that although, the respondents 2 and 3 had passed the written examination conducted under the supervision of the Indian Institute ofManagement, Ahmedabad, they were unsuccessful in the oral interview. Therefore, according to the learned counsel for the respondents 2 and 3, they did have the locus standi to move the writ application for challenging the appointment ofthe appellant because they were successful in the written examination. In this connection, a decision of this Court in the case of Alocious Fernandez v. Union ofIndia, reported in JT (1992) SC 169 was strongly relied on. In that decision, this Court had laid down that an appointment in disregard to the rules is a matter not between the appointing authority and the appointee himself, but, all those who had similar qualification and could not apply as they did not possess the qualifications mentioned in the advertisement, are also affected.

Neither do we accept this submission ofthe learned counsel for the respondents 2 and 3, nor can we rely on the decision ofthis Court in the case of Alocious Fernandez [supra], for the simple reason that in this case, admittedly, respondents 2 and 3 were not selected on the combined performance ofthe candidates in the written test and the oral interview. Although, the selection process itselfwas challenged before the High Court, it is to be noted that the learned Single Judge, while allowing the writ application, had turned down the argument ofthe respondents 2 and 3 holding that the entire selection process could not be said to be illegal or tainted with ma/a jides. So far as the Division Bench is concerned, we do not find any argun1ent advanced by the respondents 2 and 3 challenging the selection process before it.

That being the position, we are unable to hold that even though, the respondents 2 and 3 were unsuccessful in the test and could not figure in the merit list, they would be entitled to challenge the appointment ofthe appellant. Another decision ofthis Court in the case ofAtul Khuller and Ors. v. State ofJ & Kand Ors. , reported in [1986] Suppl SCC 225 was also relied on by the -( learned cow1sel for the respondents 2 and 3 in support ofthe contention '"' that it was open for an unsuccessful candidate to challenge an appointment by way ofa writ petition.

Learned counsel for the respondents 2 and 3 relied on paragraph 20 ofthe said decision in which it has been observed by this Court that the Selection Committee conducting the viva test should maintain the entire record, including the original worksheets on which G marks were recorded by each member separately, for a minimwn period ofone year after the examination and failure to do so can strengthen an allegation of mala fide against the selection committee. Since the Corporation could not produce the record before the High Court, the learned counsel for the respondents 2 and 3 submitted that a case ofmala "" TRIVEDIHIMANSHUGHANSHYAMBHAiv. 1059 fide on the part ofthe Corporation for not producing the records before the High Court ought to have been found and therefore, the appointment ofthe appellant ought to be cancelled as done by the High Court. In our view, this submission ofthe learned counsel for the respondents 2 and 3 cannot be accepted.

It is true that the records relating to the marks obtained by the candid~s in the written test as well as the oral interview could not be produced before the High Court because they were lost and thus not available. In our view, in the absence ofany material on record, we are unable to accept the contention ofthe learned counsel appearing for the respondents 2 and 3 that the records were not produced by the Corporation due to malafide intention. In this connection, the finding of the learned singlejudge on the question whether an adverse inference could be drawn against the corporation for non- production of the records before the High Court and whether for such non-production, a case of malafide could be found, may be seen.

The learned single judge, while allowing the writ petition, on consideration of the entire materials on record, came to a finding that in the absence ofany specific averment of malafides against the Members ofthe Committee holding the interview test, it was neither possible to strike down the result ofthe interview nor would it be proper to conclude that the Corporation had conducted the interview in an illegal or unlawful manner. We also endorse the same view and hold that only because the records could not be produced in view of the fact that they were lost and not available, the appointment of the appellant could not be cancelled, particularly when no malafide had been attributed by the writ petitioner - respondents 2 and 3 in the writ petition. 12.

For the aforesaid reasons, this appeal must succeed and accordingly, the judgments of the Division bench of the High Court as well as ofthe single judge are set aside and the writ petition filed by the respondents 2 and 3 stands dismissed. No order as to costs. · S. K. S. Appeal allowed.