Central Administrative Tribunal - Delhi
Sonia Chhabra vs National Highways Authority Of India on 29 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA NO. 3344/2010
MA NO. 900/2011
New Delhi, this the 29th day of July, 2011
HONBLE MR. M.L.CHAUHAN, MEMBER (J)
HONBLE MR. A.K. JAIN, MEMBER (A)
Sonia Chhabra
D/o Sh. Desh Raj Chhabra
R/o 3A/125, B.P. NIT Faridabad
Haryana.
Applicant
(By Advocate: Ms. Sonam Sharma for
Sh. Pradeep Sharma)
V E R S U S
1. National Highways Authority of India
Through its Chairman
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075.
2. The DGM (HR-II)
National Highways Authority of India
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075.
Respondents
(By Advocate: Sh. Jos Chiramal for respondent No.2)
O R D E R
Honble Sh. A.K.Jain:
Through this OA, the applicant has challenged the order/letter dated 29.04.2010 issued by Manager (Admin), National Highways Authority Of India (NHAI in short) whereby she was informed that she could not be considered for appointment to the post of stenographer as she scored zero mark out of 100 in shorthand test (Page 20 of OA). This letter was issued in pursuance of the order dated 22.02.2010 passed by this Tribunal in OA No. 599/2010. The applicant has prayed for quashing and setting aside the said impugned order/letter and for directing the respondent authorities to appoint the applicant as stenographer on Long Term Contract Basis.
2. Brief facts of the case are that the applicant has been working with the respondent-NHAI as a stenographer on Short Term Contract Basis at PIU-Sarita Vihar, New Delhi. She was engaged through a placement agency namely M/S Haryana Industrial Security Services. The initial engagement was for a period of three months, which was extended from time to time. The respondent issued an advertisement in employment news dated 13.12.2008 inviting applications for 164 vacant posts of Stenographer, 37 vacant posts of Accountants and 2 vacant posts of Junior Hindi Translator on Long Term Contract Basis. The last date of receipt of applications was 01.02.2009. The mode of selection for the post of stenographer, as indicated in the advertisement, was based on performance in written test, stenography and computer skill test. The scheme of examination for stenographers included English & General Awareness test, Stenography test @ 80 wpm, Transcription @ 30 wpm in English or 20 wpm in Hindi on Computer and Computer skill test in MS-Office. It was also stipulated that only those candidates who qualify in written test would appear in Stenography skill test. The other qualifications and conditions were also indicated in the advertisement. Altogether, 571 persons applied for the post of stenographer including the applicant. NHAI appointed EdCIL, a Government of India Agency to conduct the written and skill tests. The tests were conducted accordingly by the EdCIL in which the applicant also appeared. Thereafter, an Award List/ Combined Mark List (CML) was prepared by the EdCIL and submitted to NHAI (Annexure R/1). On receipt of the said CML, a categorywise provisional list of qualified candidates i.e. for general and reserved categories, was prepared and put on the website of NHAI. List IV consisted of 113 candidates pertaining to general category (Annexure A-5) in which applicants name was at serial number 82. Subsequently, NHAI hosted on its website another list as final list of 55 successful candidates for the posts of stenographer against 164 vacancies advertised, including both general and reserved category candidates. In the said revised list, the name of the applicant did not appear.
3. Being aggrieved, the applicant filed OA number 599/2010 before this Tribunal, which was disposed of with direction to the respondents to pass speaking order on the prayer of the applicant made in the OA, treating it as an additional representation, within six weeks of the receipt of a certified copy of the order. Accordingly, respondent-NHAI passed the impugned order dated 29.04.2010.
4. Heard the learned counsel for both the parties.
5. The case of the applicant is that she possesses all the essential and desirable qualifications and is a deserving and eligible candidate for being appointed as stenographer on Long Term Basis on the basis of selection process as specified in the advertisement dated 13.12.2008 and existing Recruitment Regulations, 1996. the respondent authorities malafidely violated the original selection process as published in the advertisement dated 13.12.2008, according to which a candidate, in order to be considered for selection, needs to qualify in just the written and skill tests and thereafter he/she is not required to sit in any further tests. The respondent authorities malafidely and secretly altered the mode of selection fixed for the post of stenographer and released a provisional list of 212 candidates against only 164 vacancies whereas there was no provision for making any provisional list and the terms of advertisement dated 13.12.2008 were very clear on this aspect that in case the number of applications is too large, only the candidates with both the essential and desirable qualifications were required to be called for the test. All the provisionally selected candidates were advised to go for a medical check up from local/nearest Government hospital and wait for further instructions relating to joining. Thereafter, the respondent, without even completing the selection process for aforementioned vacancies, put an advertisement on its website for 150 new vacancies for the post of stenographer on Long Term Contract Basis and last date for submission of application was fixed as 13.01.2010. Subsequently, instead of sending letters to the successful candidates regarding their medical check up, the respondent put the final result on website wherein 55 candidates were selected out of 212 qualified candidates in the earlier list of 09.09.2009 against 164 vacancies. The candidature of remaining candidates including the applicant was rejected on the ground that they have not been found suitable for appointment as they could not meet the criteria in one or more of the parameters set for selection for the post of stenographer. The respondent authorities were not authorised to throw out the applicant and other successful candidates out of the selection process once they qualified in both the written test and the skill test as long as their rankings in the merit list were higher than 165. It is also the contention of the applicant that she was telephonically informed by the officials of respondent authorities that she did well in the tests and her name was initially at serial number 34 in the merit list. However, due to some disputes raised by the candidates who were initially selected in 2005, the merit list had to be revised so as to accommodate those candidates and accordingly her ranking got revised. But the respondents have deliberately and consciously rejected the applicant on malicious and malafide grounds, thereby violating the legal entitlements of the applicant and principles of natural justice. Although the applicant applied against the vacancies notified on 30.10.2009 but her application is bound to be rejected as she has crossed the prescribed age. Even in the impugned order dated 29.04.2010 passed by the respondent in pursuance of the direction of this Tribunal, it has been held that the applicant is ineligible for the appointment to the post of stenographer as she scored zero mark out of 100 in shorthand test. This order is bad in law.
6. The respondent has submitted that being a relatively new organization, NHAI does not have a regular cadre of officers and employees and it depends on personnel appointed on deputation basis from the Central Government, State Government and Public Sector Undertakings. NHAI further engages employees on Long Term Basis on contract for specific projects, depending on the duration of the project. Employees are also appointed on Short Term Temporary Basis, as per requirement from time to time. The advertisement in December, 2008 for 164 posts of stenographer was for engagement for a period of two years or co-terminus with the project, subject to qualifications and other terms and conditions stated therein. The examination was to be conducted in two stages, i.e. the first stage, the written examination and in the second stage, candidates who had qualified in the written examination, were to be called for the skill test. As per decision taken by the competent authority of NHAI, 60% weightage was to be given for the skill test and 40% weightage for the written test. Qualifying in the written test was sine qua non for being called for the skill test. To ensure fairness in the recruitment process, NHAI appointed EdCIL, a Government Agency, to conduct the written and skill tests. Minimum cut off marks for written test was kept at 33% for general category and 28% for reserved category, and for skill test, 40% for general category and 35% for reserved category. The Award List/ CML submitted by EdCIL ranked the candidates in order of merit after totalling the marks obtained in shorthand, typing and computer, ignoring altogether the marks obtained in written test and without taking into account the requirement of minimum cut off marks under each of the four categories of marks, i.e. (1) written test, (2) shorthand, (3) typing and (4) computer test. As a matter of fact, if a candidate does not get the requisite cut off marks in any of the four categories, he/she ought to have been automatically disqualified. It would have been absurd if a candidate who had secured zero mark out of 100 in shorthand would have been declared fit to be appointed as stenographer. The requirement of 60% weightage for skill test and 40% weightage for written test was also not taken into consideration for the purpose of ranking of the candidates. Though initially, without realizing the error committed by EdCIL, a categorywise provisional list of candidates was prepared by the NHAI and put on the website but thereafter on close scrutiny when the error was noticed, revised final list was prepared consisting of 55 successful candidates and the same was put on the website. It was clearly mentioned therein that out of the list of provisionally qualified candidates, only candidates who had qualified in written and skill test in all parameters were declared successful for selection as per the said list. It was further mentioned that the remaining candidates who were provisionally declared successful vide the result put on the website on 09.09.2009 and had not been found suitable for appointment as they could not meet the criteria in one or more parameters set for selection to the post of stenographer, may apply again for the posts of stenographer against the vacancies put on the website of NHAI on 30.10.2009 (Annexure R/3).
7. The respondents have further stated that the applicant obtained 43 marks in written test out of 100, zero mark out of 100 in Shorthand, 40 marks out of 50 in Typing and 20 marks out of 50 in Computer test. As far as marks in shorthand are concerned, EdCIL had applied its own criteria for awarding marks in shorthand, which necessarily had to take into account number of mistakes, number of missing words etc. This implied that if a candidate could not cope up with the required speed of 80 wpm in shorthand, the said candidate was bound to make mistakes in the words transcribed, or for that matter, even miss out words, resulting in large number of mistakes. Large number of such mistakes was bound to result in zero mark out of 100, even though the applicant may otherwise have known shorthand, or may have even secured better marks at a lesser speed. The respondent has denied that the mode of selection fixed for the post of stenographer was altered. They have also denied the allegation of malafide in publication of provisional list as well as the final list or in the selection. The provisional list being erroneous, NHAI was fully justified in taking out final list of successful candidates after rectifying the said errors, which procedure was uniformly applied to all candidates including the applicant. It has also been pointed out that the applicant has not made any allegation of malafide etc. against the EdCIL, which conducted the test or for that matter against NHAI with regard to conducting skill test and marks awarded therein. It is the contention of the respondent that the applicants sole ground is that her name figured in the provisional list of successful candidates but it did not figure in final list of successful candidates which has adequately been explained by them. It has further been submitted by the respondent that appointment of the applicant as stenographer on Short Term Contract Basis does not give any vested right to the applicant for selection to the post of stenographer on Long Term Contract Basis, by way of direct recruitment since she did not, in fact, qualify in the skill test for shorthand. In view of the submissions made, the respondent has pleaded for dismissal of the OA.
8. On careful perusal of the pleadings and consideration of the submissions made by the parties, we note that the advertisement was issued for appointment of stenographers and other categories of personnel on Long Term Contract Basis. In the advertisement, essential and desirable qualifications as well as mode of selection and scheme of examination were clearly spelt out. Selection was to be based on performance in the written test, stenography and computer skill test. In the scheme of examination, the required speed for stenography and transcription and requirement of knowledge of MS-Office for computer skill test were also spelt out. The tests were conducted by an independent agency namely EdCIL who is not party to the OA. As stated by the respondent, in the method of awarding marks in stenography skill test, EdCIL has also taken into consideration mistakes committed or omissions, which is quite logical. It has also been stated that the same was uniformly followed in case of all the applicants and out of 571 candidates as many as 199 candidates including the applicant scored zero marks in stenography test. We find no irrationality in such a method of awarding marks. Again shorthand and typing are clearly part of stenography and it is quite logical to prescribe minimum qualifying marks for shorthand, typing, computer skills as well as written test. This method of awarding marks or prescribing minimum qualifying marks can not be said to be in violation of the mode of selection/scheme of examination as notified. Nor can it be treated as altering the mode of selection. It also appears from averments made in the M.A. No.900 of 2011 that the applicant was asked to appear in another stenography test on 15.01.11 as she did not qualify in the test held for employment on Long Term Contract Basis. There is no indication that this test was for employment on Long Term Contract Basis. Hence this can also not be taken as alteration in mode of selection.
9. We further note that the applicant has not contested the Award List/CML filed by the respondent as contained at Annexure R-1 of the reply filed by the respondent. The publication of a provisional list, even if not mentioned in the advertisement, by itself does not make the selection process irregular or illegal. On perusal of the List IV of the provisional list (Annexure A/5) and the CML, it clearly transpires that the marks in the written test were ignored and the minimum qualifying marks in different skill tests were not taken note of while preparing the first list which was notified as provisional list. The authorities have every right to rectify their bonafide mistakes and hence, subsequent publication of corrected list as final list can not be said to be irregular or illegal. Nor it can be interpreted as cancellation of selection of some of the candidates including the applicant in the first list because that list, which in any case was provisional, was erroneous and was corrected later on. It is settled law that mere inclusion of name in the list of selected candidates does not confer any vested right for appointment.
10. Another plea of the applicant is that the respondent was not authorised to publish advertisement for 150 new vacancies by cancelling selection of 109 successful candidates in the middle of selection process and asking such candidates to apply again against those vacancies is not in order. It has also been stated that the respondent has not appreciated that the applicant would be overage for that selection. This argument is not considered tenable because as mentioned above, the first list was erroneous and hence, names included therein can not be said to be those of finally selected candidates. Merely allowing the candidates to apply for the posts advertised subsequently does not amount any irregularity in the earlier selection.
11. We are also not convinced about alleged malafide on the part of the respondent in the selection especially when the same has been done through an independent agency. The issue of publication of provisional list and final list after correcting errors has been reasonably explained by the respondent, which is quite convincing.
12. It is quite clear from the records that the applicant obtained zero mark in the stenography test. Obviously, one cannot expect the authorities to select a candidate for the post of stenographer if he or she scores zero mark in stenography test. The contention of the applicant that she is already working as stenographer with the respondent on short term contract basis and her contract was renewed from time to time which implies that she possessed required stenographical skills, is also not tenable. In the absence of any averment about the method of selection for such short term engagement and standards required for the same, such conclusion can not be drawn. The applicant has rightly not been selected as she scored zero mark in the stenography test. In view this and the discussions above, we find that the OA is devoid of merit and hence, the same is dismissed.
13. The applicant has also filed MA No.900/2011 praying for direction upon the respondent to grant maternity leave to the applicant w.e.f. 01.02.2011 to 30.7.2011 and further to restrain the respondent from taking any coercive action against the applicant till the disposal of the OA. From the averments made in the M.A., it is clear that the applicant was engaged by the respondents through M/S Haryana Industrial Security Services on contractual basis and 10% of her salary is deducted by the placement agency as commission before the same is released. She claims to have fainted in the office on 17.01.2011 and taken to hospital at Faridabad. She was advised two weeks rest and thereafter vide letter dated 31.01.2011 she applied to the respondent authorities for maternity leave from 01.02.2011 to 30.07.2011. It has further been stated that respondent in letter dated 31.01.2011 addressed to the Manager (Admn.) made false averment that applicant wilfully absented herself from duty after 15.01.2011. It has also been denied that she was ever asked about taking test in shorthand by Manager (Technical). It has been alleged that respondents have been harbouring malicious grudge against the applicant and have been trying to harass her by all possible means.
14. The respondent, in reply to MA, has stated that the MA is totally un-connected with the subject matter of the OA, which is regarding her non-selection to the post of stenographer on Long Term Contract Basis whereas the issue in the MA relates to her alleged entitlement to maternity leave benefit in connection with her short term temporary employment as stenographer for 90 days at a time and anticipated action against her in view of letter dated 31.01.11 written by Project Director, Sarita Vihar PIU in connection with her short term engagement. We are in agreement with the respondents that the M.A. is not related to the issue in the O.A. Therefore, the MA is also dismissed with liberty to the applicant to file a substantive OA, if so advised, for seeking the redressal of grievance mentioned in the M.A. No order as to cost.
( A.K. Jain ) ( M.L. Chauhan ) Member (A) Member (J) /dkm/