Holding

The appellant possessed the requisite administrative experience and the High Court was not justified in quashing his appointment.

Summary

The appellant, an X‑ray technician employed by Ahmedabad Municipal Corporation since 1988, also performed clerical and administrative duties. He applied for the post of Assistant Manager, which required ten years of administrative experience, and his application was endorsed by the Medical Officer certifying such experience. He cleared the written test and interview and was appointed, but two unsuccessful candidates filed a writ petition alleging he lacked the required administrative experience. The High Court quashed his appointment, a decision affirmed by a Division Bench. The Supreme Court held that the appellant’s administrative experience was duly certified, the selection committees had accepted it, and the High Court was not justified in interfering under Article 226. Consequently, the appeal was allowed, setting aside the High Court judgments and dismissing the writ petition.

Issues considered

Did the appellant satisfy the ten‑year administrative experience requirement for the Assistant Manager post?
Was the High Court justified in exercising jurisdiction under Article 226 to quash the appointment?
Do unsuccessful candidates have locus standi to challenge the appointment of a selected candidate?
Can the non‑production of examination records give rise to an inference of mala fide sufficient to invalidate the appointment?

Legislation cited

Constitution of Indias. Article 226

Subjects

Service lawAdministrative experienceAppointmentWrit petitionArticle 226Locus standiSelection processTechnical to administrative promotion

Judgment

j

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

OCTOBER 10, 2007
B
[TARUN CHATTERJEE AND P. SATHASIVAM, JJ.]

Service Law:
Eligibility Condition-Appointment for the post of Assistant C
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 D
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 at the time ofselection-Even the administrative nature
of the experience possessed by the incumbent duly endorsed by E
employer-Corporation-Besides, it was duly considered by
Examination Committee while scrutinizing the application form 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, F
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 of the appellant G
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 relief to the writ petitioners-respondents-
Only because the records ofmarks obtained by candidates could not
1041 H
1042 SUPREME COURT REPORTS [2007] 10 S.C.R.

A be produced by the employer-Corporation, the appointment of
incumbent could not be cancelled only on this ground-Constitution
of India, 1950-Article 226.
Appellant was appointed as an X-Ray Technician in a Hospital
B 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 of Assistant Manager from
C amongst the qualified existing employees of the 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
D 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
E validity of the appointments to the post of Assistant 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
of the High Court held that the appointment of the appellant by the
Corporation was bad, illegal and invalid and quashed it. Aggrieved,
F the appellant challenged the judgment of the 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
G as to whether the appellant fulfilled the requirement of ten years
administrative experience for appointment for the post of Assistant
Manager.
Allowing the appeal, the Court
HELD: 1.1. It was only after scrutiny by the respective heads
H
TRIVEDI HIMANSHU GHANSHYAMBHAI v. 1043
AHMED ABAD MUNICIPAL CORPN.
of the departments that the candidature of employees, including the A
appellant, 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 of the 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 B
if successful, in the oral interview, as he had fulfilled the requisite
requirements. A bare perusal of the 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 of all the candidates falling in C
the technical category, were issued by the Medical Officer of Health
and countersigned by the Medical Officer-in-charge of Municipal
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 D
certificate on 10th of May, 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 of the appellant was forwarded by the F
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 if an 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 of the Medical
Officer, under whom the appellant was working, was duly made and
H
.~~
1044 SUPREME COURT REPORTS [2007] 10 S.C.R. \

A 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
B 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
c1 rporation, would clearly show that the appellant was performing
c a 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
D Committee, which had conducted the oral interview of the 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 of eminent persons of the society, would
E 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,
F 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]
G
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
H
TRIVEDI HIMANSHU GHANSHYAMBHAI v. 1045
AHMED ABAD MUNICIPAL CORPN.
i of technical cadre should not apply. On the contrary, the circular A
dated 13th of November 1997 clearly stated that candidates of all
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 B
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 of the appellant should C
be cancelled. In any view of the matter, it is not for the courts to find
out whether a candidate, from the technical side, was having
administrative experience of ten 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 D
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 E
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 F
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
~\
1046 SUPREME COURT REPORTS [2007] 10 S.C.R. \

A Assistant Manager. [Para 7] [1055-F, G] r
2.2. Only because the names of respondents 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 of the appellant before the High Court.
B
[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 of their combined
performance, both in the written test as well as in the oral interview,
c they challenged the appointment of the 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 of the Constitution by granting relief to them.
[Para 9] [1057-A, B]
D 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 of the appellant by holding that he did not possess the
E 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 of the appellant and
other selected candidates at the instance of the unsuccessful
candidates. [Para 10) [1057-E, F] 1~
F 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 of any material on
record, the contention of the counsel appearing for respondent Nos.
G 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
H 225, referred to.
TRIVEDI HIMANSHU GHAN SHY AMBHAI v. 104 7
AHMEDABADMUNICIPALCORPN. [CHATTERJEE,J.]
2.6. The Single Judge of the High Court, while allowing the writ A
petition, on consideration of the entire materials on record, came to
a finding that in the absence of any specific averment of ma la fides
against the Members of the Committee holding the interview test,
it was neither possible to strike down the result of the interview nor
would it be proper to conclude that the Corporation had conducted B
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 c
petitioner-respondents 2 and 3 in the writ petition.
[Para 11] [1059-C, D, E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4760 of
2007.
D
From the final Order and Judgment dated 5.7.2006 of the High Court
of Gujarat at Ahmedabad in LP.A. No. 623 of2006 in S.C.A. No. 4364/
2000.

Meenakshi Arora and Poli Kataki for the Appellant.
E
Mahendra Anand, H.S. Parihar, Kuldeep Parihar, Amar Dave and
E.C. Agrawala for the Respondents.

The Judgment of the Court was delivered by

TARUN CHATTERJEE, J. 1. Leave granted. F
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 of the learned Single Judge holding that
the appointment of the appellant as an Assistant Manager in Ahmedabad
Municipal Corporation [for short 'the Corporation'] was bad, illegal and G
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.
H
1048 SUPREME COURT REPORTS [2007] I 0 S .C.R.

A 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 of February, 1988. In the Referral Hospital, there
was no post of clerks since 1983. Since 1984, the appellant, apart from
discharging his duty as an X-ray Technician was also, regularly and
B 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 of the case papers; [v] maintaining of the register
c of the patients whose X-ray is taken; [vi] maintaining the record of the
purchase of X-ray films; [vii] purchase of X-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 of November, 1997, a circular, viz., Circular No. 80
D was issued by the Corporation inviting applications for 19 posts of
Assistant Manager from amongst the qualified existing employees of the
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
E 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 of Assistant Manager in the presc1ibed
form, which was forwarded through the Medical Officer of the
F 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 of selection was prescribed by the Corporation,
which comprised a two-tier system, namely a written test of 150 marks
G and a viva-voce test of 50 marks. The written test was conducted under
the supervision oflndian Institute of Management, 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
H
A.
TRIVEDI HIMANSHU GHANSHY AMBHAI v. 1049
AHMEDABAD MUNICIPAL CORPN. [CHATTERJEE, J.]
Interview Committee comprising (i) Municipal Commissioner, Ahmedabad; A
-f
(ii) Prof. Pestonjee, Indian fastitute of Management, 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) Chief Auditor, Municipal Corporation,
Ahmedabad. From the above, it would be evident that barring two B
members, the remaining members of the Interview Committee were the
employees of the Corporation. Therefore, it cannot be said that all the
members of the interview committee were under the employment of the
corporation. The Corporation prepared a merit list of the candidates, with
their qualifications and date of appointment in the Corporation, on the C
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 of appointment in the Corporation was shown as 17th
of May, 1984. On 22nd of December, 1999, a resolution was adopted D
by the Corporation, whereby, it was communicated to the selected
candidates that they had been appointed as Assistant Managers on
probation for a period of one year in the scale of Rs.8000-275-13500
and that after completion of the probation period, their appointments would
be made acting on the basis of report of their performance. As the E
appellant was figUiing at SL No.4 of the said resolution, he was posted
in the engineering department against the vacancy of one Lokendre Singh
Rathod. Challenging the legality and validity of the 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
F
respondents 2 and 3 in the High Court of Gujarat at Ahmedabad wherein,
the appellant was arrayed as respondent No. 3. Since, in this case, we
are concerned only with the appointment of the appellant, which has been
set aside by the High Court by the impugned judgment, we feel it proper
to refer only to the case of the appellant. In the writ petition, it was, inter
alia, alleged, by respondents 2 and 3 herein, against the appellant that G
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
H
1050 SUPREME COURT REPORTS (2007] 10. S.C.R.

A of the 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 of the 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
B Corporation.
5. The core question that needs to be decided in this appeal is
whether the appellant fulfilled the requirement of ten years experience on
the administrative side for appointment to the post of Assistant Manager.
As noted herein earlier, according to respondents 2 and 3, the appellant
C was not qualified for being appointed to the post of Assistant 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.
D 6. Before we deal with this question, we may state that respondents
2 and 3, who had challenged the appointments of the 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
E appellant, to the post of Assistant 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 of the appellant as an Assistant Manager in
the Corporation. As noted herein earlier, although the appellant was 1 . ,_
F 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 of administrative 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
G of applying 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
H
/~
I TRIVEDI HIMANSHU GHANSHYAMBHAI v. 1051
AHMED ABAD MUNICIPAL CORPN. [CHATTERJEE, J.]

i forwarded to the corporation. Therefore, from the above, it would be A
evident that it was only after scrutiny by the respective heads of the
departments that the candidature of employees 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, of the appellant was duly signed by the Medical Officer B
who had endorsed and certified that the appellant was eligible to sit in
the written test and if successful, in the oral interview, as he had fulfilled
the requisite requirements. As noted herein earlier, a bare perusal of the
form filled in by the appellant would clearly show that he had satisfied
the condition of ten years experience on the administrative side. The c
certificates of administrative experience, in favour of all the candidates
falling in the technical category, were issued by the Medical Officer of
Health and counter signed by the Medical Officer-in-charge of Municipal
Referral Hospital, Behrampura, AMC. In so far as the appellant was
concerned, the medical officer in-charge of the Municipal Referrel D
> Hospital, Behrampura, AMC, AM (Health), under whom the appellant
was working as an X-ray technician issued the certificate on 10th of May,
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 E
is rendering service since last 12 years at Health Department as
X-ray technician. Since 22nd December, 1999 as per the GDEST
)o
8313, he is holding the post of Assistant manager in the higher grade
as well as fro the same date he has attended Engineering (Project)
Division. F
By the Health Department in the city of Ahmedabad five referral
hospitals are run, Since 1983 referral hospitals began and since
then no post of clerk 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 G
perform the following administrative duties.
(i) He has to perform the duty of taking X-ray of the patient. From
each patient as per the rules of the Corporation he has to collect
H
·~
\
1052 SUPREME COURT REPORTS [2007] 10 S.C.R.

A 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 of the patient whose X-ray is taken.
B (iii) He has also to maintain the book and enter therein the details
of the 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.
c (v) He has also to maintain X-ray date stock register and that is
also audited from time to time and the responsibility of auditing is
also upon him.
(vi) The X-ray technician is holding independent charge and
D 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 of the X-ray department as well as
of other departments, he is responsible.
,,
(vii) That in the X-ray department need also arises for the sale of
E 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 thereof and deposit the amount so collected
with the Corporation. All these responsibilities are to be shouldered
F 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
G compulsorily.
He has discharged technical as well as administrative duties
diligently, honestly and satisfactorily. Till date has not allowed any

H
TRIVEDI HIMANSHU GHANSHY AMBHAI v. 1053
AHMED ABAD MUNICIPAL CORPN. [CHATTERJEE, J.]
complaint of any sort in his department. He holds a good moral A'
character.
Sci/-
Medical Officer-In-Charge
Municipal Referred Hospital,
B
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 c
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: D
"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 of administrative experience. It is stated that Mr. Trivedi is
holding the qualification of B.Sc. and LLB plus course of Radiology
Branch. It is stated that Mr. Trivedi is working as X-ray E
Technician since 1984 and he is responsible not only the
technical work, but also for clerical and administrative work
of the 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 F
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 G
!
the only allegation made against the appellant was to the effect that he
was a man of technical 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
H
1054 SUPREME COURT REPORTS [2007] 10 S.C.R.

A May, 2000 was issued by the Corporation, at a time, when the writ petition ·t-
was pending before the High Court. But, it must also be remembered that
the application fonn of the 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
B on the administrative side as well. Even if an objection is raised that the
certificate dated 10th of May, 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 of selection before the selection
committee, even then, the endorsement and approval of the Medical
c 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
D 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
E 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 i
1
't
F the oral interview of the 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 of Management, Ahmedabad; (iii) Dr. N.R
Dixit, Director, Som Lalit Institute and visiting faculty of Indian Institute
of Management, Ahemdabd; (iv) Deputy Municipal Commissioner
G [Finance]; and (v) Chief Auditor, Municipal Corporation, Ahmedabad who
are all respected persons of the society. The five member interview
committee, which consisted of eminent persons of the 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
H
~
J TRIVEDI HIMANSHU GHANSHYAMBHAI v. 1055
AHMED ABAD MUNICIPAL CORPN. [CHATTERJEE, J.]
A
ten years administrative experience. If the 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 B
requisite administrative experience for appointment to the post of Assistant
Manager in the corporation. That apart, on the question of administrative
) experience of the 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 C
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 of all the candidates, they were directed D
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 E
promoted. T'nat apart, the corporation, at the time of inviting applications
for appointment to the post in question, had never stated that the persons
of technical 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 F
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 G
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 H
~
1056 SUPREME COURT REPORTS [2007] 10 S.C.R. \

A judgment of the High Court that the High Court has quashed the
appointment of the 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
B Medical Officer, could not be considered as an administrative experience
of over ten years and therefore, the appointment of the appellant should
be cancelled. In any view of the matter, it is not for the courts to find out
whether a candidate, from the technical side, was having administrative
experience of ten years when he applied for the post of Assistant Manager
.c as we find 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. 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
D 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
E concluding that the appellant did not possess the administrative experience
of more 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 of the
appellant were themselves unsuccessful in the examination, even though
F 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 of the appellant before the High Court.
G
9. It is not in dispute that the respondents 2 and 3 as well as the
appellant were all found eligible, in the light of the 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
H .
TRIVEDI HIMANSHU GHANSHYAMBHAI v. I 057
AHMED ABAD MUNICIPAL CORPN. [CHATTERJEE, J.]
oral interview. The respondents 2 and 3 could not clear the oral interview A
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 of their combined performance, both in the
written test as well as in the oral interview, they challenged the appointment B
of the appellant and other selected candidates by moving the writ petition.
Such being the position, we are of the view that the High Court was not
} justified in exercising its power under Article 226 of the Constitution by
granting relief to the writ petitioners, who are now respondents 2 and 3
in this appeal. As we are of the opinion that the appellant did possess the c
administrative experience often years required for selection to the post
of Assistant Manager in view of the varied nature of work 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 of the view that it was not open D
to the respondents 2 and 3 to challenge the appointment of the appellant
and other selected candidates, as they were themselves unsuccessful in
the test. In this connection, reliance can be placed on a decision of this
Court in the case of Madan Lal and Ors. v. State ofJ & Kand Ors.,
[1995] 3 sec 486.
E
10. Accordingly, we are of the view that the High Court was neither
justified in interfering with the appointment of the 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 of the appellant F
and other selected candidates at the instance of the unsuccessful
candidates.
11. Before parting with this judgment, we may deal with a short
submission of the learned counsel appearing on behalf of the respondents G
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 of Management, 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
H
1058 SUPREME COURT REPORTS [2007] JO S.C.R. ~
A application for challenging the appointment of the 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 of India,
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
B 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 of the learned counsel for
the respondents 2 and 3, nor can we rely on the decision of this Court in
c 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 of the candidates in the written test and the oral
interview. Although, the selection process itself was challenged before the
High Court, it is to be noted that the learned Single Judge, while allowing
D the writ application, had turned down the argument of the 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,
E 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 of the appellant. Another decision
of this Court in the case of Atul Khuller and Ors. v. State ofJ & Kand
Ors., reported in [1986] Suppl SCC 225 was also relied on by the -(
F learned cow1sel for the respondents 2 and 3 in support of the contention '"'
that it was open for an unsuccessful candidate to challenge an appointment
by way of a writ petition. Learned counsel for the respondents 2 and 3
relied on paragraph 20 of the 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
of one 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 of mala
H
"" TRIVEDIHIMANSHUGHANSHYAMBHAiv. 1059
AHMEDABAD MUNICIPAL CORPN. [CHATTERJEE, J.]
fide on the part of the Corporation for not producing the records before A
the High Court ought to have been found and therefore, the appointment
of the appellant ought to be cancelled as done by the High Court. In our
view, this submission of the 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 B
could not be produced before the High Court because they were lost and
thus not available. In our view, in the absence of any material on record,
we are unable to accept the contention of the learned counsel appearing
for the respondents 2 and 3 that the records were not produced by the
Corporation due to mala fide intention. In this connection, the finding of C
the learned single judge 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
mala fide 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 of any specific averment of D
malafides against the Members of the Committee holding the interview
test, it was neither possible to strike down the result of the 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 E
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 2 and 3 in the writ petition.
12. For the aforesaid reasons, this appeal must succeed and F
accordingly, the judgments of the Division bench of the High Court as
well as of the 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.