Hasina Akhter Vs. Bangladesh and others, (Syed Refaat Ahmed, J.)

Case No: Writ Petition No. 14424 of 2016

Judge: Syed Refaat Ahmed, J And Md. Salim, J

Court: High Court Division,

Advocate: Mr. A. F. Hassan Ariff, Senior Advocate with Mr. Fida M. Kamal, Senior Advocate, Mr. S.M. Atikur Rahman, Advocate and Mr. Md. Zafar Ali Khan, Advocate,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Hasina Akhter, Md. Aminul Quader Khan

Respondent: Government of Bangladesh and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Syed Refaat Ahmed, J

And

Md. Salim, J

 

Judgment on

10.04.2018

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Hasina Akhter

. . . Petitioner

(In W. P. 14424 of 2016)

Md. Aminul Quader Khan

. . . Petitioner

(In W. P. 15283 of 2016)

-Versus-

Government of Bangladesh and others

... Respondent

(In both Writ Petitions)

Constitution of Bangladesh, 1972

Article 102

The price in terms of such calculated risk is indeed a bar to a judicial review of such outcome. Accordingly, here as well this Court finds itself deciding against the Petitioners’ standing in judicial review in the present circumstances.                                    . . .(28)

Constitution of Bangladesh, 1972

Article 117

Administrative Tribunal Act (VII of 1981)

Section 2AA

The ICB established under the Investment Corporation Bangladesh Ordinance, 1976 is deemed to be a statutory public authority for the purposes of the Act and by which reason the Petitioners’ grievances, if any, arising out of terms and conditions of their service fall to be squarely governed by the Tribunal established under the Administrative Tribunal Act.                                     . . . (29)

Constitution of Bangladesh, 1972

Article 117

It is deemed prudent at this juncture to enumerate the points decided by the Appellate Division touching upon the authority of this Court vis-à-vis Article 117 of the Constitution:

1) Any person in the service of Republic or any statutory authority cannot seek judicial review in respect of terms and conditions of service or action taken relating to him as a person to such service including transfer, promotion, and pension rights, except:

a)      in matters relating to challenging the vires of the law;

b)      infringement of fundamental rights in which case also, there must be sufficient pleadings of such violation keeping in mind that such plea also can be taken in the tribunal because the constitution being the supreme law of the Country, it can be taken in aid by any Court/tribunal.

2) The Administrative Tribunal shall be competent to deal with those matters and in appropriate cases of emergency, it can also pass interim order of injunction/stay subject to compliance of certain formalities.

3) The views taken in Mujibur Rahman case 44 DLR (AD) 111 have been overruled.

4) If the action of the authority or order complained of in relation to the above matters are found to be in coram non judice or without jurisdiction or is found malafide, judicial review is not available and the administrative tribunal can deal with these issues also. . . . (30)

Ajay Hasia Vs. Khalid Mujib, MANU/ SC/ 0498/19801981 SCC 258; Lila Dhar Vs. State of Rajasthan 1981 SCC (L&S) 588; State of UP Vs. Rafiquddin MANU/SC/0709/1987 [1988] 1SCR794 down to Indian Airlines Corpn Vs. Capt. K.C. Shukla, (1993) 1 SCC 17fg 1993 SCC 114(1993)23 ATC 407; Union of India & another Vs. N. Chandrasekharan & Another, AIR (1998)SC 795; Mehmood Alam Tariq and Ors. Vs. State of Rajasthan Ors., MANU/SC/0278/1988; Madhya Pradesh Public Service Commission Vs. Navnit Kumar Potadar and another AIR (1995) SC 77; Praveen Singh Vs. State of Punjab and ors, AIR (2001) SC 152; A. Satyanarayana and Ors. Vs. S. Purushotham and ors. (2008) 5 SCC 416; Chandra Prakash Tiwari Vs. Shakuntala Shukla MANU/SC/0447/2002: (2002) 6 SCC 127; Manish Kumar Shah Vs. State of Bihar MANU/SC/1265/2010: (2010) 12SCC 576; Ramesh Chandra Shah Vs. Anil Joshi MANU/SC/0317/2013: (2013) 11SCC 309 and Chandigarh Administration Vs. Jasmine Kaur MANU/SC/0777/2014: (2014) 10SCC 521 ref.

Mr. A. F. Hassan Ariff, Senior Advocate with

Mr. Fida M. Kamal, Senior Advocate,

Mr. S.M. Atikur Rahman, Advocate and

Mr. Md. Zafar Ali Khan, Advocate

- - -For the Petitioner

(In both Writ Petitions).

Dr. Shahdeen Malik, Senior Advocate with

Mr. Monzur Alam, Advocate and

Mr. Kamal Uddin Bhuiyan, Advocate

- - - For the Respondent Nos. 6-9

(In Writ Petition No. 14424 of 2016)

Mr. S.M. Moniruzzaman, Advocate 

. . . For the Respondent No. 5

(In Writ Petition No. 15283 of 2016)

JUDGMENT

Syed Refaat Ahmed, J: These are two Applications predicated on similar facts that have given rise to two Rules Nisi requiring consideration of common core issues of law, thereby, justifying both Rules Nisi to be disposed of by this single Judgment. The initial point of reference in this regard has to be common parallel directions of the Hon’ble Chief Justice of 7.3.2017 requiring this particular Bench to hear and dispose of each matter.

2.           In each of the Writ Petition Nos. 14424 and 15283 of 2016 a Rule Nisi was similarly issued calling upon the Respondents to show cause as to why Rule 9(4) of the Ce­iØV­j¾V L­f¡Ñ­lne Ah h¡wm¡­cn Hl Ef-hÉhØq¡fe¡ f¢lQ¡mL J jq¡hÉhØq¡fL Hhw Eq¡l Ad£eØq ®L¡Çf¡¢el fËd¡e ¢eh¡Ñq£ LjÑLa¡Ñ ¢e­u¡N ¢h¢dj¡m¡, 2016 or Rules for the Appointment of Deputy Managing Director and General Manager of Investment Corporation of Bangladesh and Chief Executive Officer of its Affiliated Companies, 2016 (“Rules”) (Annexure-‘A’) as published in the Official Gazette dated 1.6.2016 as being arbitrary and unreasonable as a delegated legislation should not be declared ultra virus to the Constitution and why the Memo No. 53.00.0000.422.12.001.16-17 dated 7.11.2016 issued by the Respondent No. 3 (Annexure-‘B’) giving promotion to 9 officers to the rank of Deputy General Manager/Equivalent posts of the Investment Corporation of Bangladesh (ICB) as General Manager excluding the Petitioner should not be declared to have been issued without lawful authority and of no legal effect and/or pass such other or further Order or Orders as to this Court may seem fit and proper.

3.           In Writ Petition No. 14424 of 2016 the facts concern the Petitioner who after joining ICB has had a successful career since. She was promoted to the post of Principal Officer on 18.10.1994 and as Senior Principal Officer on 1.11.1998. Subsequently, the Petitioner was promoted to the Post of Assistant General Manager (AGM) on 23.4.2007 and on the basis of her satisfactory performance to the Department, she was promoted to the post of Deputy General Manager (DGM) on 29.12.2011.

4.           The Government promulgated the Rules under the power vested in Section 13 of the Investment Corporation of Bangladesh Act, 2014. It is stated that the Rules provide for appointment of General Manager by way of promotion. Schedule 2 of the Rules provides  that the Selection Committee shall give marks to candidates for promotion out of 85 which shall include 50 marks for the Annual Credential Report (ACR), 15 marks for Educational Qualification, 10 marks for Professional Qualifications and 15 marks for Service Experience. Part 2 of Schedule 2 provides for 15 marks for interview.

5.           The Petitioner obtained 78.50 marks out of 85 by the Selection Committee and stood 8th. However, she was given 8 marks out of 15 by the Interview Committee (9 being the pass mark as 60% of 15) and was not included in the Panel of Candidates sent to the Government for Promotion.

6.           It is asserted that the Respondents have resorted to assigning marks of their own sweet will and choice to their chosen candidates and promoted Serial Nos. 16, 19 and 20 in preference to the Petitioner from the Merit List prepared by the Selection Committee marking the entire selection process redundant.

7.           It is submitted against such factual backdrop that the provision for 15 marks in interview, assigning 60% as pass mark in the interview and preparation of the Final Panel for promotion are arbitrary and unreasonable since the same have given the option to the Respondents to pick and choose illegally and deprive the more competent candidate to be promoted to the post of General Manager.

8.           In Writ Petition No. 15283 of 2016 filed on similar facts and grounds, the bare facts for disposal are that upon entering ICB’s service in 1987 the Petitioner has successfully moved up the ranks as evident in his promotion to the post of Principal Officer on 18.10.1994 and as Senior Principal Officer on 1.11.2018. Subsequently, the Petitioner was promoted to the post of AGM on 23.4.2007 and on the basis of his satisfactory performance to the Department, he was promoted to the post of DGM on 29.12.2011.

9.           The Petitioner in this case obtained 82 marks out of 85 by the Selection Committee and stood 2nd. However, he was given 8 marks out of 15 by the Interview Committee (9 being the pass mark as 60% of 15) and was not even included in the Panel of Candidates sent to the Government for promotion. Here as well, it is contended that the Respondents have taken the advantage of giving marks of their own sweet will and choice to their chosen candidates and promoted Respondent Nos. 7 to 11 and Serial Nos. 16, 19 and 20 from the Merit List prepared by the Selection Committee making the entire Selection Process farcical redundant.

10.       In enunciating the grounds behind the prayers for issuance of the Rules Nisi the learned Advocate for the Petitioners in both Writ Petitions Mr. A.F. Hassan Ariff has dealt at length on the schematic structure of the Rules. He has, accordingly, deconstructed the provisions of Rule 9, the interrelationship between Rule 6 and 9 and how the Petitioners in both Writ Petitions perceive their substantive effect in terms of Schedule 2 as draws on Rules 6(2) and 9(1). Rules 6 and 9 are, accordingly, reproduced hereinbelow for ease of reference:

6| evQvB KwgwU MVb I Dnvi Kg©cwiwa| -(1) †evW©, Av‡`k Øviv, gnve¨e¯’vcK c‡` c‡`vbœwZ cÖ`v‡bi j‡¶¨ †hvM¨ cÖv_©xi ZvwjKv cÖYq‡bi Rb¨ e¨e¯’vcbv cwiPvj‡Ki †bZ„‡Z¡ cÖ‡qvRbxq msL¨K m`m¨ mgš^‡q GKwU evQvB KwgwU MVb Kwi‡e|

(2) evQvB KwgwU wewa 7 I Zdwmj-2 Gi Ask-1 G Dwj­wLZ welqvewj Ges e›UbK…Z b¤¦i we‡ePbv Kwiqv mv¶vZKvi MÖn‡Yi †hvM¨ cÖv_©x ¢eh¡ÑQef§hÑL HL¢V ZvwjKv cÖ¯—yZ Kwi‡e|

(3) Dc-wewa (2) Gi Aaxb b¤¦i e›U‡bi †¶‡Î cÖv_©x mgMÖ PvKwi Rxe‡b k„•Ljvg~jK ev wefvMxq gvgjvq kvw¯—cÖvß nB‡j Zvnvi †gvU b¤¦i nB‡Z cÖwZwU jNy`‡Ûi Rb¨ 2(`yB) b¤¦i Ges cÖwZwU ¸i“`‡Ûi Rb¨ 5 (cuvP) b¤¦i KZ©b Kiv nB‡e|

(4) evQvB KwgwU Z`KZ©„K cÖ¯—yZK…Z †hvM¨ cÖv_©xi ZvwjKv mv¶vZKvi KwgwU‡Z †cÖiY Kwi‡e|

... and

9| mv¶vZKvi MÖnY I b¤¦i cÖ`v‡bi c×wZ| -(1) mv¶vZKvi KwgwUi cÖ‡Z¨K m`m¨ c„_Kfv‡e Zdwmj 2 Gi Ask-2 G Dwj­wLZ b¤¦‡ii g‡a¨ Z`KZ©„K h_vh_ we‡ewPZ b¤¦i cÖ`vb Kwi‡eb|

(2) mv¶vZKvi KwgwU Dc-wewa (1) Gi Aaxb b¤¦i cÖ`vb Kwievi †¶‡Î evQvB KwgwU KZ©„K mycvwikK…Z cÖv_©xi ¢ejÀh¢ZÑa welqvewj g~j¨vqb Kwi‡e, h_v:-

(K) e¨w³Z¡, wkóvPvi, Dc¯’vcbv I wbqš¿Y ¶gZv;

(L) Avw_©K evRvi, we‡klZt cuywRevRvi cwiPvjbv, Dbœqb Ges GZØmsµvš— AvBb I wewa m¤ú‡K© Ávb;

(M) cuywRevRvi m¤úwK©Z mgm¨vmg~n wPwýZKiY Ges cÖwZweav‡bi e¨e¯’v MÖn‡Yi †hvM¨Zv;

(N) M‡elYv m›`f© (Research dissertation) ev M‡elYv cÖwZ‡e`b ev ¯^xK…Z Rvb©v‡j cÖKvwkZ wbeÜ; Ges

(O) evsjv I Bs‡iwR Dfq fvlvq  mg¨K Ávb Ges Zv cÖvÄjfv‡e cÖKvk Ges Dc¯’vc‡bi ¶gZv z

(3) Dc-wewa (1) Gi Aaxb cÖ‡Z¨K m`m¨ KZ©„K cÖ`Ë b¤¦‡ii M‡oi wfwˇZ cÖv_©xi cÖvß b¤¦i wba©vwiZ nB‡e|

(4) ‡Kvb cÖv_©x mv¶vZKv‡ii Rb¨ wba©vwiZ b¤¦‡ii b~¨bZg 60 (lvU) kZvsk b¤¦i AR©‡b e¨_© nB‡j wZwb c‡`vbœwZi Rb¨ †hvM¨ we‡ewPZ nB‡eb bv|

(5) mv¶vZKv‡i GKvwaK cÖv_©xi cÖvß b¤¦i mgvb nB‡j †m‡¶‡Î A‡c¶vK…Z e‡qv‡R¨ô cÖv_©x †hvM¨Zi wnmv‡e we‡ewPZ nB‡eb|

(6) mv¶vZKvi KwgwU wewa 6 Gi Dc-wewa (4) Gi Aaxb cÖvß ZvwjKvq Dwj­wLZ e¨w³M‡Yi mv¶vZKvi MÖnY KiZt c‡`vbœwZi Rb¨ mywbw`©ó mycvwikmn †gavµgvbymv‡i cÖv_©x‡`l ZvwjKv m¤¦wjZ cÖwZ‡e`b †ev‡W©i gva¨‡g miKv‡ii we‡ePbv I Aby‡gv`‡bi Rb¨ †ck Kwi‡e|

11.       Mr. Hassan Ariff submits that the thrust of Rule 9(2) is to lay down exhaustive criteria of mandatory application. The Petitioners’ concern is that by its very formulation, however, 9(4) gives a go by to or departs from the procedure of evaluation laid down in Rule 9(2). Mr. Hassan Ariff submits that this is because Rule 9(4) reads as a stand alone/               non obstante provision in the scheme of the Rules without any express declaration to that effect. That feature in Rule 9(4), according to the Petitioners, permits of arbitrary selection violating Article 31 of the Constitution.

12.       It is of equal concern to the Petitioners, going further by the structuring of the evaluation process under Schedule 2, that Rule 9(4) also operates to give a go by to the evaluation process stipulated in Rule 6(2). It is here that Mr. Hassan Ariff has embarked on a structural analysis of Schedule 2 with a view to establishing that Rule 9(4) operates to grant paramountcy of a subjective test of evaluation in preference to any objective test. His reasoning is based on the argument that though Schedule 2 read as a whole is indivisible it nevertheless permits of segregation of evaluation processes under Rules 6(2) and 9(1). Such segregation, Mr. Hassan Ariff emphasizes is, however, not    to be construed as permitting of these two processes of evaluation to be considered wholly separate of each other or indeed to operate to the exclusion of one in preference to the other.

13.       It is explained that the evaluation or assessment by the Selection Committee under Rule 6 is primarily documentary in nature based on an evaluation of documents detailed in Part 1 of Schedule 2 through a fairly streamlined methodology with extensive criteria  and guidelines set out and inuring to an objective procedure of evaluation. Consequentially, according to the Petitioners, the exercise of discretion by the Selection Committee is reduced to a minimum at this stage. With regard to Part 2, where evaluation necessarily takes place as per the standards in Rule 9(2), the distribution of 15 points which can be read as spread across the five heads of evaluations is not further accompanied by an explanation as to how the aggregate of 15 points is to be sub-divided in turn under the sub-heads of evaluation. This is where the Petitioners submit the spectre of a subjective satisfaction is found to creep in to the Petitioners’ detriment.

14.       Mr. Hassan Ariff has submitted that Schedule 2 being indivisible but not separate, the fact of Part 2 prevailing over Part 1 lends to the argument of Rule 9(4) sitting uncomfortably in the scheme of the Schedule and, thereby, being ultra vires the Constitution. It is emphasized that by reason of Rule 9(4), Part 2 operates effectively to prevail over an entire process of evaluation as noted in Part 1 otherwise having value or weightage far larger then that assigned under Part 2. Accordingly, it is submitted that the objective test under Part 1 being valued at 85 points and the ostensibly subjective one being valued at 15 points under Part 2, it does not stand to reason that the said subjective test of evaluation in Part 2 ought to prevail over the process in Part 1 and that too mandatorily. There is put forth the argument that Rule 9(2) in its present form, unaccompanied by any explanation of the process through which such criteria are to be relied upon, reflects certain inherent weaknesses not conducive to uniform mode of evaluation. It is as a consequence to that weakness there is said to be reposed an unfettered discretion under Rule 9(4) permitting of capricious decisions by which the Petitioners are now aggrieved. This deconstruction of the structure of the Rules read with Schedule 2, in this Court’s view, constitutes the core thesis of the Petitioners’ cases with the necessary fall out of the evaluation process allegedly being tainted by mala fide.

15.       The sheet anchor of the Petitioners’ arguments as above is located in findings and observations of Mustafa Kamal, J., as he was then, in Bangladesh vs. Shafiuddin Ahmed reported in 50 DLR (AD)(1998), 27, paragraph 66 at page 44:

“In the present cases Commander Pilots working in a commercially-oriented Airlines are not being selected for promotion to the Selected Post of Deputy Operations Manager. Deputy Secretaries are being considered for promotion to the Selected Posts of Joint Secretary. Additional Deputy Commissioners and the like are being considered for promotion to the Selected Posts of Deputy Secretary. They have already put in a number of years in Government service which is basically different form working as a Pilot in a Commercial Airline. Evaluation of their efficiency, conduct, discipline, comprehension, initiative, zeal to work honesty, personality and various other requirements of service have been recorded each year in their respective ACRs. That ought to be the most dominant and persuasive document for the purpose of evaluating the candidates’ eligibility for the promotion post. The marks fixed for interview should be minimum so as not to upset the accumulated credits achieved by the candidates over the years in their respective ACRs by a momentary impression created in the minds of the Interview Board before which the candidates cannot possibly appear for more than a few minutes. There is a strong need to protect the public servant from the propensity of politicisation of administration by a party Government by keeping the marks for interview as minimum as possible so that the scope of arbitrariness and the possibility of pick and choose are absolutely minimised. We would therefore agree with the ultimate  decision of the learned majority  Judges of the Special Bench that allocation of 40% marks for interview in the context of the situation obtaining in our country and in the context of the finding that the guidelines were arbitrarily departed from, was lopsided and was capable of being used arbitrarily and that 15% marks for interview under the circumstances would be a safe marking system for protecting the neutral character of public service.”

16.       That dictum is relied upon further in conjunction with the methodology of exercise of discretion drawn by Mr. Hassan Ariff from the ratio decidendi in Barium Chemicals Ltd. vs. Company Law Board reported in AIR 1967 (SC) 295.The governing principle according to Mr. Hassan Ariff drawn from the Barium ratio is that the Selection Committee acts as a collegium arriving at a collective decision with the presumption, however, of each member arriving at an independent decision and each such decision being reflected duly in the aggregate decision reached. That, according to Mr. Hassan Ariff, is indeed the tenor and purport of Rules 9(1) and 9(3) as well. However, the Petitioners contend, the facts show that such procedure has not been followed in either instance and it is here that they detect a legal infirmity in the decision-making process stemming from a violation of express provisions of the law.

17.       In laying out the applicability of the Barium ratio to these cases Mr. Hassan Ariff has argued that subjective discretionary opinion must in turn satisfy an objective test. Opinion formed solely on subjective satisfaction flows from absolute discretion and, therefore, is to be found as arbitrary. In the facts, he submits, opinions formed by the Interviewing Committee had no nexus either with past track record bearing 85 points or the assessment of earlier three Departmental Promotion Committee reports because those are excluded under Rule 9(4) mandating an interview as the sole basis of forming an opinion. It is stressed here that the Selection Committee’s report under Rule 6 and reports of three earlier assessments are the substantive materials for consideration by the Interview Committee for formation of opinion under Rules 9(2) and 9(4). Those materials are submitted to be relevant materials for consideration since these contain factors which provide guidelines, yardsticks and criteria for formation of opinion which otherwise would be the outcome of unfettered discretion. It is submitted that these are materials and factors which collectively constitute the objective basis for evaluation. In other words, any opinion in order to satisfy the test of objectivity must be shown to have taken into consideration all such relevant factors. It follows that absence of such consideration makes any opinion wholly subjective emanating from unfettered discretion. Borrowing from the Barium ratio it is argued that exclusion of these materials from consideration makes discretionary opinions/ formation of opinion devoid of objectivity, predictability, definiteness and demonstrability. It is here that the Petitioners sense a violation of their rights given that, decisions affecting them have allegedly been dependent on personal opinions and idiosyncrasies which are but unfettered discretion manifested in another form. It follows, therefore, according to the Petitioners, that the Selection Committee report under Rule 6 carrying 85 points and the Second Schedule Parts 1 and 2 carrying an aggregate 100 point in total are made absolutely nugatory by operation of Rule 9(4), thereby, negating any prospect of a comprehensive objective assessment. By reason of this disconnect between Rule 9(4) and the general scheme of the Rules, Rule 9(4) appears as prescribing a mandatory overriding threshold solely based on opinion formed through subjective satisfaction, thereby, fortifying the Petitioners’ argument that Rule 9(4) is ultra vires the Constitution.

18.       Dr. Shahdeen Malik representing ICB in both cases has sought in response to lead this Court through more recent judicial discourse (relative to the Shafiuddin Ahmed Case), encapsulating a shift of focus from the “public servant concern” (as dominated in the Shafiuddin Ahmed Case and reflected in Mustafa Kamal, J’s dictum above quoted) and concentrating instead on the intrinsic worth of viva voce exams and their role in the greater scheme of public service. The detectable shift of judicial focus is from the “public servant” to “public service”.  Dr. Malik’s objective, it is this Court’s opinion, has been to establish that the perceived structural imbalance in the Rules and the scheme so highlighted by the Petitioners as above is more to be viewed as a reflection of also a statutory shift with greater weightage granted to a particular mode of evaluation at certain levels of promotion bearing in mind the greater public interest to be served and without necessarily encouraging arbitrary and unfettered exercise of discretion. Dr. Malik has in this regard argued that there is nothing intrinsically or inherently illegal either in the formulation of Rule 9(4) or in its operation that could justify an Order for striking that provision down. The judicial literature placed before this Court by Dr. Malik has been relied upon by him primarily to neutralize the challenge to the vires of Rule 9(4). The thrust of his argument is best encapsulated by the ratio decidendi in C.P. Kalra vs. Air India through its Managing Director, Bombay and Ors. reported in 1994 Supp. (1) SCC 454.

19.       The ratio in C.P. Kalra Case is significant in its bifurcation or segmentation of modes of examination and the relative significance accorded them according as the level to which the prospective recruit or promotee is being inducted into service or promoted. Predicated on the premise that no hard and first rule has evolved with regard to assignment of points or marks for written and oral examinations, thereby, leaving us no closer to determining what a permissible norm or limit should be for assigning such marks, the C.P. Kalra Case is authority for the view that distribution of points or marks would depend largely on the job requirement for each post and the level of the post.

20.       Relying on a whole host of cases being Ajay Hasia vs. Khalid Mujib, reported in MANU/SC/0498/19801981 SCC 258, Lila Dhar vs. State of Rajasthan reported in 1981 SCC (L&S) 588, State of UP vs. Rafiquddin MANU/SC/0709/1987 reported in [1988]1SCR794 down to Indian Airlines Corpn vs. Capt. K.C. Shukla  reported in (1993) 1 SCC 17fg 1993 SCC 114(1993)23 ATC 407, the Court in the C.P. Kalra Case found on a distinction between interviews held for competitive examination or admission in educational institutions and those for selection for higher posts. It noted that efforts have been made to limit scope of arbitrariness in the former instance but that the same standards cannot be applied or replicated for higher selection as clearly found in the Lila Dhar Case. It was found, therefore, “that no hard and fast rule can be laid down in these matters because much would depend on the level of the post and the nature of the performance expected from the incumbent.

21.       The next case of note, taking a cue from the C.P. Kalra Case, is Union of India & Another vs. N. Chandrasekharan & Another reported in AIR (1998)SC 795. It is in this case that in elaboration the Court dealt with the prescription of minimum qualifying marks out of an aggregate mark for viva voce examination. Referring to the decision in Mehmood Alam Tariq and Ors. vs. State of Rajasthan Ors. reported in MANU/SC/0278/1988, the Court subscribed to the view that such prescription of minimum qualifying marks for viva voce examination does not by itself incur any constitutional infirmity. Indeed, as laid down in the Mehmood Alam Case:

“The principles laid down in the cases of Ajay Hasia, Lila Dhar, Ashok Kumar Yadav, do no militate against or render impermissible such a prescription. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible positions in the core services such as the Administrative Services and the police Services should be men endowed with personality traits conducive to the levels of performance expected in such services....Academic excellence is one thing. Ability to deal with the public with fact and imagination is another. Both are necessary for an officer. The dose that is demanded may vary according to the nature of the service.”

22.       The Mehmood Alam ratio as relied upon in the N. Chandrasekharan Case highlights that evaluation processes as under the Rules in general and Rule 9(4) in particular which emphasize a requirement of higher rate of personality must, therefore, not readily be considered as an unreasonable expectation of the law. The Chandrasekharan judgment aptly further relies on greater enunciation of this principle evident in the judgment in Lila Dhar vs. State of Rajasthan. It will suffice to quote herein below the relevant extract of the Lila Dhar ratio decidendi so relied upon:

“Thus, the written examination assesses the man’s intellect and the interview test the man himself and “the twain shall meet” for a proper selection 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 candidate’s 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 perforce to be 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 Periakaruppan V. State of Tamil Nadu, Ajay Hasia V. Khalid Mujib Sehravardi & Ors, cases. On the other hand, in the case of service 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 profession requirements being satisfied...There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great a weight, to the interview test. There cannot be any Rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualification prescribed, the age group form which the selection is to be made, the body to which the task of holding the interview test in proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research, it is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union Public Service Commission.”

23.       It was in the Lila Dhar Case that the Court further indicated that in such matters reflecting matters of policy, judicial wisdom lies in judicial restraint. As the judgment in the Chandrasekharan Case attests to in substantiation, generally “matters of policy have little adjudicative disposition.” Such cautionary note against judicial overreach in matters as this, thereby, arrogating such authority to the Courts that which must necessarily remain strictly confined within the administrative and policy making realm has not failed to strike a favourable chord with this Court.

24.       The issue of minimum qualifying cut-off mark in viva voce examination also came up for judicial consideration in U.P. vs. Rafiquddin with a similar outcome. The Chandrasekharan Case in tying up all these others strands of judicial pronouncements itself arrived at the conclusion that:  

“The Commission had , therefore, power to fix the norm and in the instance case it had fixed 35 percent minimum marks for viva voce test. The viva voce test is a well recognized method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate, the same has to be respected.”(Emphasis added).

The Court in the Chandrasekharan Case, accordingly, found no constitutional or legal infirmity in the fact of minimum qualifying marks assigned in a viva voce examination.

25.       Dr. Malik, building on the distinction between the two strands of the recruitment process according as whether one is looking to be appointed to a high post or finds oneself applying for a post at a fairly early stage in one’s career as clearly enunciated in the case law above cited, points out that the case citations relied upon by the Petitioners to stress upon the legal infirmity in Rule 9(4) like Madhya Pradesh Public Service Commission vs. Navnit Kumar Potadar and another reported in AIR (1995) SC 77, Praveen Singh vs. State of Punjab and ors. reported in AIR (2001)SC 152 etc. are all cases dealing with fresh appointments and having distinguishing features like a shift or increase in the minimum requirement in the midst of a recruitment process (as in the Navnit Kumar Case), which do not therefore, operate to override the governing ratio of the cases as above cited on behalf of ICB. It is also pointed out that the Petitioners’ reliance on the decision in A. Satyanarayana and Ors. vs. S. Purushotham and Ors. reported in (2008) 5 SCC 416 in which the quota ratio was challenged also has no manner of application in the present facts and circumstances.

26.       In acceptance of the agreements and citations so put forth by Dr. Malik, this Court is inclined to find that the segments of the Rules Nisi as question the vires of Rule 9(4) are indeed without merit and that there remains no scope for this Court to strike the same down as being the unconstitutional in any way.

27.       There is yet another segment to the Petitioners’ cases that needs to be addressed at some length and that has to do with the expectations and the bundle of rights with which the Petitioners came into the examination process, participated in that exercise, remained unsuccessful and sought to air their grievances through this judicial review mechanism. Brushing way the argument that by such participation the Petitioners may have compromised their rights and standing to seek redress in judicial review, it has been argued on their behalf that they did not voluntarily participate in the exam process for promotion but were rather invited to participate so as part of the operation of the system or mechanism of promotion. It has been argued that the fact of participation has always been a matter of fait accompli for the Petitioners who had never a personal option to back out or withdraw from the process.

28.       This is where in response the ICB represented by Dr. Malik argues for a standard of evaluating standing as well as a legitimate right by reference to a host of decisions supporting the view that the Petitioners are incapacitated both by reason of estoppel and  waiver to seek redress before this forum in the facts, For this view we may turn again to the ratio decidendi of  the Chandrasekharan Case which deters  individuals who go into an evaluation process knowing fully well the procedure that they must submit to, but who upon being unsuccessful then turn around and contend that the procedure and the standard was somehow flawed in one way or the other, from seeking any redress. That position in law, Dr. Malik submits, acts as an impediment to judicial review for the Petitioners here as well who took a calculated risk at embarking on a process of evaluation in full knowledge of possible outcomes. The law here is reflected in a catena of cases including, for example, Ashok Kumar and Ors. vs. State of Bihar and Ors. reported in AIR(2016) SC 5069, which in this Court’s view lay down a strict standard as are intended to operate to deter such cases been brought an judicial review. In other words, the principle of estoppel would operate in full measure in these circumstances. That seems to be the view uniformly held in Chandra Prakash Tiwari vs. Shakuntala Shukla reported in MANU/SC/0447/2002: (2002)6SCC 127, Manish Kumar Shah vs. State of Bihar reported in MANU/SC/1265/2010: (2010)12SCC 576, Ramesh Chandra Shah vs. Anil Joshi reported in MANU/SC/0317/2013: (2013) 11SCC 309 and Chandigarh Administration vs. Jasmine Kaur reported in MANU/SC/0777/2014: (2014) 10SCC 521.The common thrust of all these cases is that a disgruntled candidate having submitted to an evaluating process shall, upon completion of the process, indeed have the avenue of judicial review closed to him/her. That is the price, even if harshly imposed by the Courts, that they must pay for “a chance of selection” or “a calculated risk” they take in sitting for such exams. Here, this Court lends its support to the view that the price in terms of such calculated risk is indeed a bar to a judicial review of such outcome. Accordingly, here as well this Court finds itself deciding against the Petitioners’ standing in judicial review in the present circumstances.

29.       There are of course, in the facts, further residual matters as have come across in both these Writ Petitions primarily touching upon the structuring of the Rules and the manner in which they operate. It is on the latter such issue that the Petitioners perceive a mala fide operation of the law to their detriment. Dr. Malik has argued that these are matters now best left to be agitated before an appropriate forum being the Administrative Tribunal. This Court has, in that regard, had to consider Article 117 of the Constitution read with Section 2AA and the Schedule to the Administrative Tribunal Act, 1980 (“Act”). Upon such reading, it is clear to this Court that the ICB established under the Investment Corporation Bangladesh Ordinance, 1976 is deemed to be a statutory public authority for the purposes of the Act and by which reason the Petitioners’ grievances, if any, arising out of terms and conditions of their service fall to be squarely governed by the Tribunal established under the Act.

30.       This Court is also reminded here of the Judgment dated 15.12.2015 of the Appellate Division in Civil Appeal No. 159 of 2010 arising from the Judgment and the Order dated 5.2.2009 passed by the High Court Division in Writ Petition No. 2438 of 2004 and as is attracted to the present cases. It is deemed prudent at this juncture to enumerate the points decided by the Appellate Division touching upon the authority of this Court vis-à-vis Article 117 of the Constitution:

            “1) Any person in the service of Republic or any statutory authority cannot seek judicial review in respect of terms and conditions of service or action taken relating to him as a person to such service including transfer, promotion, and pension rights, except:

a)      in matters relating to challenging the vires of the law;

b)      infringement of fundamental rights in which case also, there must be sufficient pleadings of such violation keeping in mind that such plea also can be taken in the tribunal because the constitution being the supreme law of the Country, it can be taken in aid by any Court/tribunal.

2) The Administrative Tribunal shall be competent to deal with those matters and in appropriate cases of emergency, it can also pass interim order of injunction/stay subject to compliance of certain formalities.

3) The views taken in Mujibur Rahman case 44 DLR (AD) 111 have been overruled.

4) If the action of the authority or order complained of in relation to the above matters are found to be in coram non judice or without jurisdiction or is found malafide, judicial review is not available and the administrative tribunal can deal with these issues also. On this point, the decisions in Shaheda Khatun vs. Administrative Appellate Tribunal, 3 BLC (AD) 155, Ehtesham Uddin v. Bangladesh, 33 DLR (AD) 154, Ismail Hoque Vs. Bangladesh, 34 DLR (AD) 125, Mostaque Ahmed vs. Bangladesh, 34 DLR(AD) 222 and Helal Uddin Ahmed vs. Bangladesh, 45 DLR(AD) 1 have also been overruled on limited point.”

31.       Issues of vires of the Rule 9(4) of the Rules raised in these Writ Petitions and contended violations of the Petitioners’ fundamental rights having already been found to be without merit for reasons above explained, there is by operation of the Appellate Division’s ruling above in Civil Appeal No. 159 of 2010, therefore, found no residual or outstanding issues that remain amenable to judicial review.

32.       By reason of the above, and the grounds elaborated, this Court, therefore, finds itself wholly disinclined to intervene in the matters as anticipated in the Rules Nisi finding no merit in these Writ Petitions and no substance in the Rules Nisi. In the result, both Rules Nisi are, hereby, discharged.

33.       All ad interim Orders are, accordingly, recalled and vacated.       

34.       There are no Orders as to costs made in either Writ Petition.

35.       Communicate this Judgment and Order at once. 

Ed.