ORDER
N.K. Jain, C.J.
1. These writ petitions are filed against the common order of the Tamil Nadu Administrative Tribunal passed in O.A. Nos. 7893 of 1999 and 17 of 2000, whereby the Tribunal directed the Tamil Nadu Public Service Commission to select and appoint the applicants before the Tribunal.
2. Brief facts, which are necessary for the disposal of the appeals, leading to filing of the above O.As are: a notification was published by the Tamil Nadu Public Service Commission (hereinafter referred to as Commission), inviting applications for the recruitment to the post of Group I Services for 84 vacancies for five different categories in January, 1998 in two successive stages, preliminary examination and the main examination, consisting of qualifying examination and oral test and final selection on the basis of marks obtained at the main written examination and oral test subject to the rule of reservation. A preliminary examination was conducted on 7.6.1998. 840 candidates were provisionally admitted for written examination to be held in December, 1998 and January, 1999. Petitioners were informed on 7.10.1998 that they were provisionally admitted to the main examination on the basis of results in the preliminary examination. The written examination consisted of six papers including General Tamil or English, totaling 1200 marks followed by an interview for 250 marks on 19.12.1998 and 10.1.1999. It is alleged that the applicants in O.A. Nos. 7389 of 1999 and 17 of 2000 respectively secured 1032.50 and 1186.50 marks in the written examination and were also called for interview on 25.11.1999 and 4.12.1999 as per the notification published dated 23.10.1999.
3. A detailed counter was filed denying the averments as alleged. It is stated that as per the instructions to candidates, one was prohibited from writing any identifying mark in the answer book which would invalidate the candidate. The Controller of Examinations-Incharge invalidated 255 candidates due to mentioning of prohibited identifying marks. But thereafter, when the concerned Controller of Examinations came after election duty, he found on scrutiny that only two candidates had to be invalidated and validated 253 answer sheets out of which 139 candidates might be permitted for oral test, which had been approved by the Full Commission. A new notification dated 6.11.1999 was issued and 391 candidates were called for interview.
4. The Tribunal, on consideration, by a detailed order, observed that initially the Commission had taken a decision that there were identification marks and invalidated some candidates and the decision to revalidate them was not justified. It also held that by adding 139 more candidates, the total number would increase to 391 and it would be against the direction of the Supreme Court in Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. A.I.R. 1987 S.C. 454. It was also observed that the Tribunal scrutinised each and every answer sheet and ultimately found that the selection of 139 candidates for oral test was bad and it should be made only from amongst the person who were already in the list and the Tribunal directed as stated above.
5. W.P. Nos. 11730 and 11731 of 2000 are filed by 10 candidates, who were selected by the second notification and W.P. Nos. 13346 and 13347 of 2000 are filed by the Commission. As the controversy involved in all the writ petitions is the same, as agreed, all the writ petitions were heard together.
6. Mr. V.T. Gopalan, learned Additional Solicitor General, appearing for the Commission, submitted that the order of the Tribunal is arbitrary and illegal. It is submitted that as per Instruction 14, a candidate should not write roll number anywhere except in the space provided and he should not write or sign his name and this instruction is available at the top of question VII in General Tamil and English. He submitted that as per the Instruction, the candidates were directed to use only common marks such as 'xxxx', 'yyyy' and 'zzzz' and the violation of the same will lead to invalidation of their answer books. The staff, who were incharge of the evaluation wing noticed that of the 741 candidates, about 255 candidates had either written 'xxxx's, 'yyyy's or given fictitious names, in the answer sheets, while answering questions. They mistakenly assumed that the said markings were contrary to the instructions and put up a note through the Controller of Examinations (In charge) to the Commission for invalidating the answer papers. Since the scrutiny of 255 answers papers was not possible, only the note was put up without the answer sheets and the Commission approved the same. Out of the then accepted valid answer sheets evaluated, 252 candidates were selected for the oral interview vide notification dated 23.10.1999. The Controller of Examinations, on return from Election Duty, brought up to the notice of the Commission the rejection of 255 answer papers and the Commission in turn directed the verification of the answer sheets. Accordingly, another notification was issued selecting 253 answer sheets out of 255 as valid and after calculating the cut-off marks, 139 candidates were included for oral test vide notification dated 6.11.1999, resulting in the exceeding of 1:3 ratio of vacancy and interview. Learned Additional Solicitor General submitted that though the candidates were asked in their answers not to disclose their identity or their names or write anything through which the identity of the candidates could be established, when the candidates in answer to a question relating to an authority, given the name of the authority, it could not be said that the candidates had identified themselves. He further submitted that the action of the Commission was not actuated by any mala fide nor based on any extraneous consideration. According to the learned Additional Solicitor General, the second notification came to be issued only in the interest of justice. He contended that the Tribunal erred in not appreciating these facts and the revocation of the invalidation was the only way by which injustice done to such a large number of candidates could be rectified and they could be given a chance to take part in the oral test. He submitted that the decision in Ashok Kumar case , itself holds that interview of a large number of candidates exceeding the ratio would not per se vitiate the selection process and something more should be shown in order to invalidate the selection process and something more should be shown in order to invalidate the selection made. Learned Additional Solicitor General submitted that the Tribunal had failed to appreciate the facts of the case in its proper perspective. He further submitted that the Commission cannot be faulted for including the 139 candidates on the ground of ratio which is now 1:5 instead of 1:3. He also submitted that once the applicants had appeared in the interview, without challenging the notification, they could not take advantage of the ground alleged. He relied on the decision of the Apex Court in Madanlal v. State of Jammu and Kashmir and prayed for the setting aside of the order of the Tribunal.
7. Mr. N.R. Chandran, learned senior counsel, appearing for the writ petitioners in W.P. Nos. 11730 and 11731 of 2000, while reiterating the submissions of the Additional Solicitor General, contended that for no fault of theirs, the 139 candidates should not be penalised that the principle of equity should be applied. They had only some identification marks in reply to the letters as contained in the questions and due to the mistaken assumption, the staff of the evaluation wing had invalidated their papers. He submitted that on merit, eligible candidates had been selected for the oral test and if the petitioners secured marks over and above the applicants in the O.As., they would get a chance for appointment on merit and if the applicants secured more marks, they would get the appointment and merit alone prevailed. Hence, when the merit alone would prevail, the denial of chance to 'the petitioners, was nothing but illegal. The petitioners being the affected parties were not made respondents before the Tribunal and they were not heard before passing the order against them. He contended that the decision to include 139 candidates was based on fair play and principles of natural justice and it could not be termed to be a mala fide action. He submitted that the Supreme Court had time and again held that the Court should not interfere in the matter of selection process by the competent authority unless it was challenged by the aggrieved person on the ground of mala fide and arbitrary. He submitted that though the applicants did not challenge the fresh notification dated 6.11.1999 and did not pray for setting aside the revalidation, the Tribunal had gone a step further and passed orders adverse to the interest of the writ petitioners, which was agitated only by two persons without impleading them and others as parties. Hence, he prayed for the setting aside of the order of the Tribunal. He relied on the decisions in Arun Tewari v. Zila Mansavi Shikshak Sangh A.I.R. 1998 S.C. 331, Ishwar Singh v. Kuldip Singh and J. Jose Dhanapaul v. S. Thomas .
8. Mr. G. Masilamani, learned senior counsel for the first respondents in the above writ petitions, contended that the Tribunal was well within its right to direct the Commission to select the applicants. He submitted that merely because a large number of persons had been invalidated, it could not be a ground to revalidate their papers. The Controller of Examinations had not given any reason as to how they had been re-validated. According to him, the Commission, having taken a decision to invalidate the answer papers, cannot revalidate the same without any ground. He submitted that by including 139 more candidates, the Commission had violated the direction contained in the decision of the Apex Courtto maintain the ratio of 1:3. Therefore, he prayed that the order of the Tribunal should be sustained. He prayed that the direction given by the Tribunal should be followed and meritorious candidates should not be deprived. He further submitted that once the Tribunal had come to a finding after elaborate discussion and after going through the original papers, it would not be proper for this Court to re-appreciate the facts again as this Court had no jurisdiction to re-appreciate and come to a conclusion, different from the one arrived by the Tribunal. To support his contention, the learned senior counsel relied on the decision in A.R. Antulay v. K.S. Nayak and Anr. 1984 S.C.C. 277, Karnataka Public Service Commission v. B. M. Vijaya Shankar and Ors. and Karnataka Public Service Commission v. P.S. Ramakrishna .
9. Learned Counsel for the petitioners contended in rejoinder that the argument of Mr. G. Masilamani that the dictum that this Court could not go into the facts and re-appreciate the order, was equally applicable to the Tribunal and the Tribunal had erred in re-appreciating the second notification when there was no jurisdiction for the Tribunal to do so. While considering so, the Tribunal had come to a wrong conclusion that answering to a question by putting the name of the addressee, was an identification.
10. They also contended that the procedure so adopted by the Commission could not be re-appreciated by the Tribunal in the absence of any mala fide and the decisions cited were not applicable in the facts of the given case. The only prohibition as contained at the top of Question VII is that no personal identification should be mentioned and therefore, the alleged identification in the answer book could not lead to the conclusion that it violated the instruction so as to set aside the selection.
11. They also contended that in the absence of any prohibition for review and in the interest of justice, when the Commission, after scrutiny, had come to the conclusion on the advice of the Experts that none of the candidates, except two, had committed violation, and in the absence of any mala fide, the Tribunal erred in sitting in judgment over the decision of the Commission and thus the Tribunal had misconstrued.
12. We have heard the learned Counsel for the parties and perused the materials on record and the case law.
13. So far as the legal position is concerned, it is well-settled that where a statute provides to do a particular thing in a particular manner, the thing must be done in the way as contemplated in the statute. It is also not disputed that the power of review must be conferred by statute either specifically or by necessary implication. It is also settled that no adverse decision shall be taken without giving sufficient opportunity or hearing to a party.
14. Keeping in view the settled principles of law, we gave our earnest consideration to the respective arguments. The first argument is that without a provision for review, the Commission has issued the additional list. So far as the legal point is concerned, it is well-settled that without a provision for review as per statute, it cannot be done. But at the same time, if there is no prohibition by necessary implication, the Commission can correct its errors apparent on record. As the facts culled out, the invalidation was made by the Controller of Examinations (Incharge), which had been considered by the Controller of Examinations and Experts, including Examiners. None of the Examiners had found in which way the alleged identification marks violated the instruction. After following the procedure, considering the report by the Expert Committee and on verification that there was no identification mark, contrary to direction, in the answer books, the Full Commission had approved. Therefore, in our opinion, on this ground, the Tribunal has erred in evaluating the answer papers. The decision in R.K. Verma v. Union of India, is not helpful wherein the Apex Court held that the principle that the power to review must be conferred by statute either specifically or by necessary implication, is inapplicable to decisions purely of an administrative nature. It was also held that any Government must be free to alter its policy or its decision in administrative matters. It was also observed that very often it is found that an all too strict application of a rule works undue hardship on a civil servant, resulting injustice and inequity, causing disappointment and frustration to the civil servant.
15. The other argument that the instructions are meaningful and equality in the examination is necessary but the Commission has not done the thing in a manner, which has been provided as per the prohibition clause and allowed the other students by additional list. The argument is not acceptable and helpful for the reasons already stated. The observation made in A.R. Antulay's case 1984 S.C.C 277, wherein it was held that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all, is not applicable. That apart, the directions are only instructions and in fact, they have come to the conclusion that only two answer books were not as per the instructions.
16. In Karnataka Public Service Commission v. B.M. Vijaya Shankar , wherein civil services examination was conducted by the State Public Service Commission, there were instructions that no roll number should be written anywhere other than the space provided. Roll numbers were written not only in the space provided therefor on the cover page of the answer book but also on all the pages inside the answer book, which was held contrary to clear instructions and the Commission had not evaluated the said answer books. The same was challenged on the ground that no opportunity was afforded to the candidates by the Commission before taking such action. The Tribunal gave a direction to get the answer book of the candidates evaluated. In that context, their Lordships held that the Commission was justified in not evaluating the answer book. An opportunity need not be afforded to a candidate by the Commission before taking such action. It was also held that as the action was not in the nature of punishment for any misconduct, the rule of hearing would not be strictly considered in academic matters particularly, while conducting such examination. Clearly, this case is not applicable to the facts of the case in hand. So also, the decision in Karnataka Public Service Commission v. B.M. Vijaya Shankar , where the above decision was followed, is not applicable. Therefore, in the facts of the given case the applicants in the O.As. cannot take advantage of the above cases.
17. The applicants in the O.As. have not chosen to challenge the original notification dated 6.11.1999 calling for interview and rather they took part in the interview. When, the applicants have chosen to take a chance by not challenging the original notification and took part in the interview along with 139 students, now they cannot go back and challenge the same. In Madanlal v. State of Jammu and Kashmir , it was held that the result of an interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. In our view, in the facts of the given case, the applicants have no right to challenge the additional list and the result of the interview on that basis.
18. The next argument of Mr. Masilamani, learned senior counsel, is that too many persons have been called for the interview by publication of additional list, thus increasing the ratio. On consideration, we find on the basis of material available on record that they chose to re-validate the candidates as the number of invalidated candidates was high and it was reviewed by the Commission as stated, only after thorough scrutiny and it was revalidated. Under such an extraordinary situation, the argument on the basis of increase in the ratio is not acceptable and the same is not sustainable in the facts of the given case in the absence of any mala fide on the part of the Commission. No specific averment of mala fide or arbitrariness has been made against the Commission. Once by following due procedure, the answer books have been considered by the Expert Committee and they have taken a decision as stated, on this count, the selection cannot be set aside. The applicants cannot take advantage of the decision in Ashok Kumar's case , wherein it was held that mere exceeding the ratio would not per se vitiate the selection process and more particularly when no averment of mala fide has been pleaded.
19. This Court is fully conscious of the principle that generally this Court will not interfere in the order of the Tribunal. But at the same time, this Court has power to weigh and correct the decision rendered by the Tribunal under Article 226 of the Constitution and also use the power of superintendence under Article 227.
20. To our mind, the very purpose of conducting competitive examination is that it should be fair. Considering this aspect, once on scrutiny of the answer books, the Expert Committee has come to a conclusion that the answer books of only two persons are in violation of the instructions and there is no infirmity in respect of other answer books, the re-appreciation by the Commission based on Expert Committee, need not have been gone into and interfered with by the Tribunal. That apart, as the facts culled out, more than, 1000 candidates out of the revalidated candidates have secured lesser marks than the applicants before the Tribunal. Therefore, we find no ground to declare the action of the Commission publishing the additional lists as bad or in violation of the instructions.
21. It is also pertinent to note that the two applicants have taken a chance to appear in the interview along with 139 candidates without challenging the new notification as stated. Once they are not successful, it is not open to them to question the interview based on additional list. A reference can be made to the decision of the Apex Court in Madanlal v. State of Jammu and Kashmir A.I.R. 1995 S.C. 1088, wherein it was held that the result of an interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. Therefore, on this ground also, the order of the Tribunal is not sustainable.
22. The order of the Tribunal calls for interference for the reason that without impleading the affected 139 candidates, who have been called for interview by the second notification, the Tribunal has decided the issue and ultimately curtailed their rights by directing to consider only those selected as per first notification. This is a serious defect of non-joinder and on this ground also, the order is not sustainable.
23. According to the argument of Mr. Masilamani, if the additional list is taken into account, it will get his chance only in the fourth category i.e., instead of being made a Deputy Collector, he can be considered only for the post of Deputy Registrar and thus deprived of his right. This argument is not acceptable for the reason that merely coming in the merit list will not confer on him any right to be considered for Deputy Collector more so when the entire five categories are pertaining to one service.
24. No other point was pressed before us.
25. For the reasons stated above, we find the order of the Tribunal not sustainable and the same is set aside. The Commission is directed to consider the candidates who attended interview in response to the second notification, as well. The writ petitions are allowed with no orders as to costs. Consequently W.M.Ps. are closed.