Central Administrative Tribunal - Delhi
Narender Singh vs Staff Selection Commission on 24 May, 2016
Central Administrative Tribunal
Principal Bench:New Delhi
OA No.1028/2013
Reserved on :16.10.2015
Pronounced on:24.05.2016
Hon'ble Shri Sudhir Kumar, Member (A)
Hon'ble Shri Raj Vir Sharma, Member (J)
Narender Singh S/o Chokh Ram
R/o Village-Kalsada,
Teh. Hathin, District-Palwal,
Haryana. ...Applicant.
(By Advocate:Shri S.R.Sharma)
Versus
1. Union of India,
Through Secretary, Govt. of India,
Ministry of Personnel, P.G. & Pension,
Department of Personnel and Training,
New Delhi.
2. Staff Selection Commission (Northern Region),
Through its Chairman,
Block No.12, CGO Complex,
Lodhi Road, New Delhi. ...Respondents.
(By Advocate: Shri S.M.Arif)
ORDER
Per Sudhir Kumar, Member (A):
The applicant of this OA had filed this case on account of his being aggrieved by Respondent No.2 having prescribed a condition for the candidates to get at least 25% minimum marks in the interview during the course of selection process for getting selected to the posts of Sub Inspectors. According to him, this (OA No.1028/2013) (2) prescription gave scope for granting undue favours to some candidates, with malafide intentions, and that this condition was not prescribed at the time of issuance of Advertisement dated 09.06.2012.
2. The applicant had also challenged the allocation of 100 marks for the interview out of total 500 marks, which came to 20% of the total marks, which, according to him, is illegal, arbitrary and contrary to the judgments of the Hon'ble Supreme Court in (i) Ashok Kumar Yadav & Another vs. State of Haryana & Others : (1985) 4 SCC 417, (ii) Vikram Singh & Another vs. Subordinate Selection Board, Haryana : (1991) 1 SCC 686 and (iii) Sri Ashok alias Somanna Gowda & Another vs. State of Karnataka & Others : (1992) 1 SCC 28.
3. He had further alleged that the respondents held the interview in a totally arbitrary manner, without following any set criteria for awarding of marks by the Interview Board, which he has alleged to be arbitrary, apart from the fact of the respondents not conducting the interview in conformity with the concept and the object for which the interview is held, and thus the whole exercise of holding interviews being in violation of the fundamental rights of the applicant under Articles 14 and 16 of the Constitution.
(OA No.1028/2013) (3)
4. He is aggrieved because despite his having scored more than 70% marks in written examination held for the concerned posts of Sub Inspectors in Delhi Police, he had been awarded as low as 10 out of 100 marks at the interview, with malafide intention, because of which he was not able to make it to select list, missing it by just 0.5% marks, as he had secured 292.50 out of 500 marks, including the marks of interview, whereas a large number of candidates, with much lesser marks than the applicant in the written examination, had been selected.
5. He has therefore alleged that the interview being of 100 marks out of 500 total marks has actually been used by the respondents as a tool to knockout the candidates like him, who had scored much higher marks in the written examination, so that they could then select the candidates arbitrarily, as per their whims and fancies. He has alleged that awarding merely 10 out of 100 marks to a candidate at the interview, after he had scored more than 70% marks in written examination, itself makes it arbitrary and unjust, inasmuch as awarding such low marks by the Interview Board undermines the value and significance of the written examination. He has further alleged that when the written test was objective in nature, the candidates scored higher marks, but when the interview was conducted, and the discretion (OA No.1028/2013) (4) was used in a subjective manner, the same candidates got to score low marks, which clearly goes to prove that there is something fundamentally wrong with the process of selection undertaken by the respondents. Hence this OA.
6. The facts of the case lie in a narrow compass. The Respondent No.2-Staff Selection Commission (SSC in short) had issued an Advertisement on 09.06.2012, inviting applications from eligible candidates for recruitment of Sub Inspectors (Executive) in Delhi Police. The recruitment for the said posts was to be made through an All India Examination, written examination for which was conducted by Respondent No.2 at various different centres over the country, and it was followed by Physical Endurance Test/Medical Examination and Interview/Personality Test. The minimum educational qualification was prescribed as Graduation from a recognized University and the minimum and maximum age was prescribed to be between 20 to 25 years as on 01.08.2012.
7. The applicant herein is a Graduate with subjects in History, Sanskrit, English & Hindi from Maharshi Dayanand University, Rohtak. The break-up of marks in the Written Examination was provided in the Advertisement itself, and it was prescribed that a deduction of 0.25 marks will be made for each incorrect answer (OA No.1028/2013) (5) marked on the OMR Answer-sheet. The applicant took the Written Examination at Delhi on 19.08.2012 and also cleared Physical Endurance Test/Medical Examination. Having scored 148.75 out of 200 marks in Paper-I and 134 out of 200 marks in Paper-II, the applicant has claimed to have been one of the highest scoring candidates.
8. In the interview call letter which was issued to him, it was not mentioned as to how the 100 marks of the Interview/Personality Test would be divided. However, it was mentioned that the candidate should be well prepared in his subjects in Graduation. The applicant has alleged that the judging of the personality during Interview on the basis of his knowledge in the subjects in Graduation of a candidate is contrary to the concept of the Interview/Personality Test. However, he appeared at the Interview on 02.02.2013, he was asked questions relating to history and Sanskrit, and he thought that he had done very well. On the basis of his performance in Written Examination and the Interview, the applicant was expecting his appointment, but he was shocked when the result was declared, and his name was missing from the Select List because he had been given 10 marks out of 100 in the Interview. The applicant had secured a total of 292.75 aggregate marks in (OA No.1028/2013) (6) Written Examination and Interview, while the last candidate selected was at 292.50 marks.
9. He had also submitted that he had learnt that during the course of the selection process, the respondents had introduced a new condition for selection, according to which a candidate should have scored minimum 25% marks in the Interview/Personality Test for "General" candidates, and 20% marks for "SC/ST"
candidates, which condition had not been mentioned in the Advertisement dated 09.06.2012, and thus, the introduction of a new condition during the selection process was assailed as being illegal, arbitrary and liable to be quashed. He has also alleged that the Interview was conducted arbitrarily, and division of marks in the Interview had not been disclosed.
10. The applicant has further alleged that from the result list it can be seen that the candidates who had scored poorly or in the middle range, like between 45% to 55%, in the Written Examination, had scored very high marks at the Interview (even above 70%), whereas the candidates who had scored even above 70% in the Written Examination, had scored lowest level marks at the Interview, which reflects the criteria of the Interview as being completely arbitrary and sufficient to knock out any brilliant candidate from the race of selection, like in his case. He has (OA No.1028/2013) (7) submitted that 10% marks in the Interview could be awarded only to a stupid person, below average, having no reasoning ability, no alertness of mind, no ability of taking decisions, and without any knowledge of the world around him. He has submitted that even a candidate of average ability should have been awarded not less than at least 30-40%, and a candidate being awarded just 10 marks in the Interview out of 100 only goes to indicate that there is some basic flaw in the respondents' criteria of assessing the suitability of a candidate.
11. He has submitted that Interview cannot be meant to test the knowledge of a candidate in a particular subject, as it is meant to test the personality of a candidate, and also his suitability to the post which he is supposed to occupy, and the job he is required to perform, which does not appear to have happened in this case. He has submitted that in view of the law laid down by the Hon'ble Apex Court in Ashok Kumar Yadav (supra), more than 12.2% of the marks cannot be allotted for Interview. He had pointed out to another case in OA No.917/2013 in Mandeep vs. Delhi Police & Others, in which interim relief had been granted by this Tribunal, and it had been directed that the Respondent No.2 shall not take any steps for making appointments with regard to the Merit List prepared by them.
(OA No.1028/2013) (8)
12. The applicant has taken the ground that the criteria for awarding marks in the Interview by the Respondent No.2 was absolutely arbitrary and illegal, and, therefore, violative of his fundamental rights under Articles 14 and 16. He had assailed the condition prescribed to obtain minimum 25% marks in the Interview/Personality Test as being illegal and arbitrary, as the same has been introduced during the course of selection process, and was not a part of the Advertisement dated 09.06.2012.
13. He has also assailed excessive percentage of marks being allocated for the Interview, which, at 20%, is more than 12.2% marks, which is the upper limit fixed by the Hon'ble Supreme Court in Ashok Kumar (supra). He has further taken the ground that in order to maintain the balance between objective and subjective assessments, the objective assessment of the written examination should be given primacy, and the subjective assessment through an Interview should be given a subservient role, to the minimum possible level. He had taken the ground that allotting of 20% marks for the Interview was arbitrary, and primacy was thus being given to subjective assessment over objective assessment, because of which the candidates who had scored even less than 50% marks in the written examination have scored 50 to 60 marks at the Interview, whereas the (OA No.1028/2013) (9) candidates scoring as high as 75% marks in the written examination have been awarded 10-11% marks at the Interview. He has further taken the ground that if the marks of the Interview had been fixed at 12.2%, or even at 15%, he would have got selected, and has assailed the alleged arbitrariness in awarding of marks in the Interview. He has further submitted that if the knowledge of subjects concerned was to be tested, the respondents should have conducted a second Written Test, but the Interview cannot be such an exercise of 100 marks, where 8- 10 questions relating to the subjects are asked, which itself is highly arbitrary, and an unjust way to hold the Interview. He further took the ground that the Interview conducted by the Interview Board cannot at all be said to be Personality Test, when he was just asked questions related to particular subjects only.
14. He had assailed the entire selection as having been vitiated by the arbitrary manner of holding the Interview, and his being wrongly awarded 10 out of 100 marks by the Interview Board as completely arbitrary, irrational and unjust, because of which he had failed to get selected by just 0.5 marks, and his fundamental rights were violated. In the result, the applicant had prayed for the following reliefs:
(OA No.1028/2013) (10) "a) Quash the condition to have 25% minimum marks in interview/personality test for general candidates as being illegal and arbitrary.
b) Declare fixing/allotting 100 marks out of total 500 marks, being 20% of total marks of the examination for interview as excessive, unconstitutional, arbitrary, illegal, irrational, unjust and violative of Article 14 and 16 of the constitution of India and quash the result of interviews and the select list prepared on the basis thereof.
c) Declare the respondents to fix 12.2% of the total marks for interview as per the decision of the Hon'ble Supreme Court mentioned above and after fixing such marks for interview hold fresh interviews on the basis of such fixed marks and prepare/re- draw fresh select list or
d) Declare the respondents to prepare the select list on the basis of 12.2% of the total marks for interview and declare the applicant as a successful candidate and include his name in the select list and also direct the respondents to appoint the applicant on the post of Sub Inspector of Delhi Police.
e) Declare the awarding of 10 marks out of 100 marks in interview as an arbitrary exercise of discretion by the respondent no.2.
f) Declare the whole exercise of holding interview as not being in conformity with the concept and purpose of interview and personality test and also for not holding personality test as envisaged in the interview letter dated 11.01.2013 as unconstitutional and illegal and thus bad in law.
g) Pass such further orders as this Hon'ble court may deem fit and necessary."
15. Some changes were made in the OA, during the course of arguments of the case, which we shall discuss later.
(OA No.1028/2013) (11)
16. In their counter reply filed on 01.07.2013, the respondents had submitted that during the Interviews it was observed that there was no co-relation in the performance of some of the candidates in the Written Examination and in the Interview. It was submitted that for selection posts, where the criterion of selection is based solely on Interviews, the Respondent No.2 had already fixed minimum qualifying marks for various categories of the candidates, and the same analogy had been adopted during the process of Interview in this examination also. It was further submitted that the Respondent-Commission had, after due deliberation, decided to introduce cut off marks in the Interviews of 25% for UR candidates and 20% for all reserved category candidates, which was done well before the completion of the examination process, in order to improve its selection process. It was, therefore, submitted that cut off was uniformly applied in case of all the candidates, and the most deserving candidates had been selected for the job, and no inference or manipulation can be established, as a uniform standard was applied to all the candidates, and it is clear that the applicant is not entitled for any indulgence of this Tribunal, and the OA is, therefore, bereft of any merit and the same may be dismissed with costs.
(OA No.1028/2013) (12)
17. The applicant filed a rejoinder on 08.10.2013. In this, he had more or less reiterated his contentions as already made out in the OA. Reliance had been placed upon the judgments cited and a complete set of the cited judgments was filed on 23.07.2013.
18. Heard. During the course of arguments, learned counsel for the respondents pointed out the Order which had since been passed in OA No.913/2013 in Mandeep vs. Delhi Police & Others (supra) along with four connected OAs, which was pronounced on 10.10.2013. He also relied upon the case of Dhananjay Malik & Others vs. State of Uttranchal & Others (2008) 4 SCC 171 to state that a candidate, who had unsuccessfully participated in the process of selection without any demur, is estopped from challenging the selection criterion.
19. We have given our anxious consideration to the facts of this case. Since a Coordinate Bench of this Tribunal had in Mandeep vs. Delhi Police & Others (supra) considered and decided the issue of cut off marks at the Interviews having been prescribed, we are bound to follow the same. The relevant portion of the judgment read thus:
"24. On the conspectus of the above case law (stood as on today, since certain issues referred to a larger bench), the following Principles emerged:
(OA No.1028/2013) (13)
1) The authority making the rules for regulating the selection, can prescribe by rules, the minimum marks both for written examination and interview, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview.
2) Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above.
3) Once, rules provides for a certain procedure, the Selection Committee, cannot supplant, i.e., by prescribing or following any different procedure, but can supplement to the said prescribed procedure.
4) Fixing the qualifying/minimum/cut off or some criteria for written examination, even after the commencement of the process of selection, to short list the candidates for participating the interview, is permissible, but fixing the qualifying/minimum/cut off marks for interview, after commencement of the selection process, is not permissible.
5) Fixing of Benchmark percentage for final selection higher than the minimum marks required for mere eligibility, is different from simply fixing the qualifying/minimum/cut off marks, for short listing.
6) Fixing of Bench Mark percentage for final selection, at any stage of the selection, i.e., even after commencement of the selection process, is permissible.
25. In the present case, admittedly, the Recruitment Rules, i.e., Delhi Police (Appointment & Recruitment) Rules, 1980 does not prescribe any minimum marks either for the written examination or for the interview for regulating the selection to the posts of Sub-Inspectors (Executives) in Delhi Police. However, the recruiting agency, i.e., respondent-SSC while calling for the applications vide their Advertisement notice dated 19.08.2012 (Annexure A3) prescribed the Scheme of examination, wherein it was mentioned that the examination will consists of a written examination (400) marks, PET/ME which will be of qualifying nature and Interview-cum-Personality Test (100 marks). The written examination was divided into Paper-I (200 marks) and Paper-II (200 marks), and further provided that only those candidates who secured qualifying marks in Paper-I of the Written Examination as fixed by the Commission, at its discretion, will be short-listed for PET/Medical Examination. PaperII of short-listed candidates, who qualify in PET/ME will only be evaluated. The Commission while reserving right of discretion to fix (OA No.1028/2013) (14) different minimum qualifying standards in each part of Paper-I taking into consideration among others, category wise vacancies and category wise number of candidates, provided that only those candidates, who have scored above the `cut off marksfixed by the Commission in Paper-I would be required to appear in the Physical Endurance Test/Medical Examination. It was further provided under Note-II to para 9 (Syllabus) that Marks received in Paper-I will be used to screen the candidates for appearing for PET/Medical Examination and marks of such screened candidates in Paper-I if they are successful in PET/ME, will be taken into account along with marks in Paper-II for selecting them for the Interview and also for final selection.
26. More importantly, under the heading Mode of Selection, the Commission, provided that The Commission will recommend the candidates in the merit list on the basis of the aggregate marks obtained by the candidates in the written examination and interview/personality test.
27. The respondent-Commission vide its Annexure A1, i.e., declaration of final results, for the first time, informed to the candidates that `cut off marks for the Interview at 25% for UR category and 20% for other categories has been fixed, and those candidates who secured the said cut off marks in the Interview are only finally declared selected.
28. The applicants in these OAs, relying on the statement of the Commission, under the heading Syllabus, Marks of such screened candidates in Paper-I, if they are successful in PET/ME, will be taken into account along with marks in Paper-II for selecting them for the Interview and also for final selection and under the heading Mode of Selection that the merit list would be prepared on the basis of the aggregate marks obtained in the written examination and interview, submit that fixing of cut off marks for the interview, that too, after the selection process has been commenced is impermissible.
29. Firstly, a perusal of the impugned Para No.3 of the Annexure A1 final result, i.e., fixation of cut off marks for the interview, clearly indicates that the same does not fall under the aforesaid principles No.5 and 6, i.e., fixation of Bench Mark and that the same falls under principle No.4, i.e., fixing the cut off marks for the interview, after commencement of the selection process. The power of the respondent-Commission to fix the minimum `cut off marksfor the written examination as well as for the interview is not disputed but fixing the `cut off marks for the interview after the selection process has been commenced, is only disputed by the applicants.
(OA No.1028/2013) (15)
30. It is the admitted case that the respondent- Commission for the reasons best known to it but not explained in their pleadings, has not fixed the `cut of marks for the interview before the commencement of the selection process, though it can do so, as per the settled principles of law. Further, contrary to the settled law, the Commission chosen to fix the minimum cut off marks for the interview after the commencement of the selection process. The contention of the respondent-SSC, that they are empowered to fix the cut off marks, even for interview, for selecting the best quality candidates, keeping in view the requirements of job, and the importance of personality for efficient discharge of duties of the said job, Sub-Inspector in the present case, is not negatived by Courts. But, the SSC being the prime recruiting agency, was in full knowledge of the requirements of the job even before commencement of the selection process, while issuing the advertisement, has consciously chosen not to provide such a procedure which will enable it to prescribe any cut off marks for the interview. It is brought to our notice, the respondent-SSC, now for the recruitment of Sub-Inspector in Delhi Police, etc. for the year 2013, vide their Corrigendum to the Notification for Recruitment of Sub-Inspector in Delhi Police, CAPFs and Asst. SI in CISF and IO in NCB Examination, 2013, reserved its right to prescribe, at its option, separate cut off marks in interview for general and reserved category candidates.
31. In view of the aforesaid dicta laid down by the Hon'ble Apex Court, the impugned action in fixing the cut off marks for interview after the selection process is commenced, is impermissible, and hence, the impugned final result, drawn on the basis of the said impermissible action, is liable to be set aside.
32. In the circumstances, and for the aforesaid reasons, the impugned Annexure A1, declaration of final results for the post of Sub Inspector (Executive) in Delhi Police, 2012 is set aside and the respondents are directed to redraw the final results, strictly on the basis of the aggregate marks obtained in the written examination and interview/personality test, i.e., without application of any cut off marks for the interview, and to consider the candidates for appointment accordingly. All the OAs are accordingly allowed, and the interim orders passed in the respective OAs are vacated. No order as to costs."
20. The Coordinate Bench had set aside the impugned action of the respondents in fixing cut off marks for interviews after the (OA No.1028/2013) (16) selection process had commenced as impermissible and had held that the impugned final result, drawn on the basis of the said impermissible action, was liable to be set aside, and the respondents were directed to re-draw the final results, strictly on the basis of the aggregate marks obtained in the Written Examination and Interview/Personality Test, i.e. without application of any cut off marks for the Interviews, and to consider the candidates for appointment accordingly. We are not only bound by the order of the Coordinate Bench, but we also agree with them fully. The respondents could not have introduced a new condition of cut off marks at the interviews, after the process of selection had started. During the course of arguments, learned counsel for the applicant himself said that the prayer at Para 8 (a) of this OA stands satisfied, and had not pressed the same.
21. He had, however, pressed for the prayer at 8(b), praying to declare 100 marks out of total 500 marks, being 20% of total marks, for the interview as excessive, arbitrary, illegal, irrational and violative of the Constitution. Learned counsel for the applicant had in the result not prayed for quashing of the entire result, and had only prayed for quashing of fixing/allotting of 100 marks out of total 500 marks for the interviews. But, this aspect (OA No.1028/2013) (17) has also already been considered by the Coordinate Bench, and it had upheld that such allocation of marks, and the addition of marks awarded in the interview and the marks awarded for the written test for declaration of final results, as per judgment dated 10.10.2013 (supra). Therefore, we find ourselves unable to accede to the connected prayers at para 8(b), 8(c) & 8(d).
22. In regard to the prayer at para 8(e), to declare awarding of 10 marks out of 100 marks in the interview to the applicant as an arbitrary exercise of discretion by the respondent no.2, it is seen that those marks were awarded by the Interview Board, and not by the Respondent No.2. This Tribunal is not equipped to put itself in the shoes of the Interview Board, and cannot, on the basis of submissions of the applicant, decide as to what questions were asked of him, and what replies were given by him before the Interview Board, which was constituted by the Respondent No.2.
23. At the time of arguments, learned counsel for the respondents had submitted that the Interview Board was not provided with a copy of the marks obtained in the Written Test by the candidates appearing in the interview. This aspect had been disputed by the learned counsel for the applicant, but without any basis. Therefore, we find ourselves unable to grant the prayer at (OA No.1028/2013) (18) para 8 (e) of the OA. In respect of prayer at para 8 (f) as reproduced above, since the Coordinate Bench has already upheld the whole exercise of holding of interviews, we find ourselves unable to provide any relief in response to Para at 8 (f) also. Therefore, when the applicant had appeared before the Interview Board without any demur and protest, and the Interview Board concerned constituted by the respondent no.2 had found him eligible for only 10 marks out of 100, under the law, as laid down by the Apex Court in Dhananjay Malik (supra), he is estopped from challenging the process of selection through that interview, in which he had participated.
24. There is a plethora of other judgments also, in which it has been repeatedly held that after taking part in the examination/process of selection, the candidate concerned cannot lay a challenge to that process itself, just because he has come out to be unsuccessful:-
"i) National Institute of Mental Health & Neuro Sciences vs. Dr. K.Kalyana Raman & Ors. AIR 1992 SC 1806;
ii) Osmania University Represented by its Registrar, Hyderabad, Andhra Pradesh vs. Abdul Rayees Khan: (1997) 3 SCC 124;
iii) K.H. Siraj vs. High Court of Kerala & Ors. (2006) 6 SCC 395;
(OA No.1028/2013) (19)
iv) University of Cochin Rep., by its Registrar vs. N. S. Kanjoonjamma and Others, AIR 1997 SC 2083;
v) K.A. Nagamani vs. Indian Airlines & Ors., (2009) 5 SCC 515;
vi) Amlan Jyoti Borooah vs. State of Assam & Ors., (2009) 3 SCC 227;
vii) Manish Kumar Shashi vs. State of Bihar & Ors.
(2010) 12 SCC 576;
viii) Union of India & Another vs. N. Chandrasekharan & Ors. (1998) 3 SCC 694.
25. In the result, after the prayer of the applicant at Para 8(a) having been satisfied, and there being no merit in the other prayers as made out in the OA, the OA is dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) /kdr/