Central Administrative Tribunal - Delhi
Sachin Kumar vs Staff Selection Commission on 14 September, 2015
OA 1830/13 1 Sachin Kumar v. Chairman, SSC & ors
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1830 OF 2013
New Delhi, this the 14th day of September, 2015
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
&
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..............
Sachin Kumar,
s/o late Beer Pal Singh,
R/o Village & Post - Raishpur,Sec.23, Sanjay Nagar,
District Ghaziabad,UP, Pin 201002 ........... Applicant
(In person)
Vs.
1. Chairman,
Staff Selection Commission,
Block No.12,
CGO Complex,
Lodhi Road, New Delhi
2. Secretary,
Staff Selection Commission,
Block No.12,
CGO Complex,
Lodhi Road,
New Delhi
3. Regional Director (NR),
Staff Selection Commission,
Block No.12,
CGO Complex,
Lodhi Road,
New Delhi
4. Controller of Examination,
Staff Selection Commission,
Block No.12,
CGO Complex,
Lodhi Road, New Delhi .......... Respondents
(By Advocate: Mr.S.M.Arif)
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OA 1830/13 2 Sachin Kumar v. Chairman, SSC & ors
ORDER
RAJ VIR SHARMA, MEMBER(J):
The brief facts of the applicant's case, as projected in the O.A., are as follows:
1.1 The applicant was an OBC candidate of Combined Graduate Level Examinations of 2010, 2011 and 2012 conducted by the Staff Selection Commission (hereinafter referred to as 'Commission'). 1.2 So far as Combined Graduate Level Examination of 2010 is concerned, although on the basis of final result the applicant was offered the post of CPO (SI), which was an interview post, he could not join the said post because of illness of his mother at the relevant point of time. 1.3 So far as Combined Graduate Level Examination of 2011 is concerned, although on the basis of his merit the applicant was offered the post of Auditor, C &AG at Hyderabad in the State of Andhra Pradesh, he could not also join the same because of his personal problems. 1.4 As regards the Combined Graduate Level Examination 2012 (hereinafter referred to as 'CGLE-2012'), pertaining to which the applicant filed this Original Application, the applicant scored the 352.75 out of 700 marks in Tier I and Tier II Examinations and Interview, the breakups of which were as follows:
Tier I - 79.75 out of 200 marks
Tier II Paper I - 149.50 out of 200 marks
Paper II - 109.50 out of 200 marks
Interview - 14.00 out of 100 marks
Total - 352.75 out of 700 marks.
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OA 1830/13 3 Sachin Kumar v. Chairman, SSC & ors
The applicant's first preference was for the post of Assistant in CSS. The cut-off marks for OBC category in respect of the post of Assistant in CSS were 345.50 marks. As per the scheme of CGLE, for the post of Assistant in CSS, a candidate shall not have more than three attempts at the examination unless covered by any of the exceptions notified by the Government of India. As the applicant has already availed of three attempts for the post of Assistant in CSS, he would not be eligible for the post of Assistant in CSS for the fourth time, and as a result of illegal fixation of cut-off marks in CGLE-2012, he has been deprived of selection to the post of Assistant in CSS pursuant to CGLE-2012, although he has scored more marks than the marks scored by the last selected candidate belonging to OBC category who has been nominated for appointment to the post of Assistant in CSS. 1.5 The Commission fixed and applied the cut-off of minimum 25 marks for UR category of candidates and 20 marks for other categories of candidates in Interview for selection against interview posts. This criterion, i.e., minimum qualifying marks in interview, was never mentioned in the Advertisement/Notice of CGLE-2012, nor was any prior information given by the Commission about such criterion. No corrigendum/ clarification/ addendum was published at any time from the date of advertisement to the date of declaration of the final result. All the terms and conditions of the CGLE-2012 were same as of CGLE-2010 and CGLE-2011. The Commission followed the same practice and selection process as adopted by it across the board.
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OA 1830/13 4 Sachin Kumar v. Chairman, SSC & ors 1.6 On the basis of aggregate marks scored by him in the written
examination and interview, the applicant claims that he was entitled to be selected for the post of Assistant in CSS in PB Rs.9300-34800/- & Grade Pay Rs.4600/-.
1.7 The Advertisement/Notice of CGLE-2013, published on 19.1.2013, contained the same terms and conditions as of CGLE-2011 and CGLE-2012. But on 26.1.2013, the Commission published a clarification/addendum to the following effect:
"The Commission also has the discretion to fix minimum qualifying marks in Interview for each category of candidates as mentioned."
According to the applicant, it is evident from the above clarification/addendum that fixation of minimum qualifying marks in interview was introduced by the Commission only in respect of CGLE-2013. 1.8 Soon after publication of the final result of CGLE-2012 on 8.2.2013, the applicant approached the respondents, by making successive representations, and applications under the RTI Act in the matter. There being no response to either of his representations and applications, the applicant filed the present O.A. on 28.5.2013 seeking the following reliefs:
"(i) To direct the respondent Commission to follow the procedure of selection in CGL-2012 as mentioned in the Advertisement and as per the practice adopted in the previous years and accordingly give the applicant the post of Assistant in CSS with all consequential benefits, Or To direct the respondents to give another opportunity for interview for the CGL (year 2012).
(ii) To allow the original application with costs of the litigation.Page 4 of 15
OA 1830/13 5 Sachin Kumar v. Chairman, SSC & ors
(iii) To pass such other and further order which their Lordships of this Hon'ble Tribunal fit and proper in existing terms and circumstances of the case."
2. In the counter reply, the respondents have, inter alia, stated that at the time of publication of the Advertisement/Notice of CGLE-2012, a situation of fixing cut-off marks in interview was not foreseen due to the fact that the usual practice of conducting written test, followed by interview, was a routine process for selection and nomination of candidates. However, of late, it was observed that candidates selected lacked in appropriate communication skills that is required in times of public dealings. The purpose of fixing cut-off marks in the interview was to select the candidates suitable for dealing with public. The Commission was already in the process of improving the selection process. It was often observed during interview that there was no correlation in the performance of some of the candidates in the written examination with that in the interview. The Commission, after due deliberation, decided to introduce cut-off marks of 25 for UR category of candidates and 20 for all reserved categories of candidates in the interview. The fixing of cut-off marks for UR category of candidates and reserved categories of candidates was done well before the completion of the selection process of CGLE-2012. As the applicant scored 14 marks in the interview, he was not eligible for the post of Assistant in CSS. Since the applicant had also opted for non-interview posts (Code: RSTUVWXYZ), he was selected for the post of Auditor in C&AG and placed at Rank SL/III/737. It is also stated by the respondents that the Commission carried Page 5 of 15 OA 1830/13 6 Sachin Kumar v. Chairman, SSC & ors out post-examination analysis. The applicant and some other candidates were found to have adopted unfair means during the said examination. Show-cause notices were issued to them. They made representations against the same. The Commission is examining all such representations received in response to the show-cause notices.
3. In his rejoinder reply, the applicant has stated that the Commission may continue the process for improving the standard of selection process, but any step for the same cannot be initiated arbitrarily during the already ongoing selection process. The selection process has to be regulated by the terms and conditions contained in the advertisement/notification of the examination. No change can be adopted by the Commission during the already ongoing selection process to the disadvantage of any candidate. As regards the show-cause notice, which is stated by the respondents to have been served on him, it is stated by the applicant that the Commission, vide its letter dated 14.11.2013, has cleared his case and has accordingly allotted the rank to him for the non-interview post.
4. The respondents have also filed an additional affidavit, along with copy of their letter, dated 22.1.2014, nominating the applicant for appointment to the post of Auditor in C&AG. It is stated by the respondents that the applicant was initially selected for the post of Auditor in C&AG, but his candidature was kept in the 'withheld list', and a show-cause notice was issued to him for allegedly using of unfair means. Later on, the Committee Page 6 of 15 OA 1830/13 7 Sachin Kumar v. Chairman, SSC & ors constituted by the Commission cleared the candidature of the applicant for appointment. Accordingly, he was recommended for appointment to the non-interview post, and his dossier was sent to the C&AG. In view of this, the respondents submit that the present O.A. has become infructuous and may accordingly be disposed of.
5. We have perused the records, and have heard the applicant in person, and Mr.S.M.Arif, learned counsel appearing for the respondents.
6. In support of his case, the applicant placed reliance on the decision of the Tribunal in Sh.Mandeep, etc., v. Commissioner of Police and others, etc., OA No.917 of 2013 and other connected O.As., decided on 10.10.2013.
7. Per contra, Mr.S.M.Arif, learned counsel appearing for the respondents, relied on the decision of the Hon'ble High Court of Delhi in Vijay v. Union of India and others, W.P.( C ) No. 1456 of 2013, decided on 27.8.2014.
8. In Manjusree v. State of A.P. and Another, (2008) 3 SCC 512, the respondents prescribed the cut-off marks for interview after the selection process was completed, in making recruitment for the post of District & Sessions Judge (Grade-II). The recruitment was governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958, which did not prescribe any criterion for selection. The Hon'ble Apex Court held thus:
"....We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and Page 7 of 15 OA 1830/13 8 Sachin Kumar v. Chairman, SSC & ors interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
9. In Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11, the Hon'ble Apex Court in the matter of appointment to Delhi Higher Judicial Service, following the decision in K. Manjusree's case (supra) and distinguishing its earlier decision in K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, held that prescribing minimum marks for viva voce after the written test was over is illegal. The relevant paragraphs of the judgment are reproduced below:
"9. From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Page 8 of 15 OA 1830/13 9 Sachin Kumar v. Chairman, SSC & ors Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
10. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v.
State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.
10. In Sh. Mandeep's case (supra), the Staff Selection Commission had issued an advertisement calling for applications from eligible candidates to fill the vacancies in the cadre of Sub-Inspector (Executive) in Delhi Police. The recruitment process comprised of two parts. A candidate was to clear a written examination, carrying maximum marks of 400, a physical Endurance Test/Medical Examination of a qualifying nature, and an interview-cum-personality test of 100 marks. The written Page 9 of 15 OA 1830/13 10 Sachin Kumar v. Chairman, SSC & ors examination was in two papers, i.e., Part-I and Part-II, each carrying 200 marks. The applicants, who were candidates in the recruitment process, approached the Tribunal, complaining that though they scored higher aggregate marks than several others, their names did not figure in the Select List. They contended that the recruitment process was also tainted in that the minimum percentage of marks in the interview, i.e., 25% for General Candidates and 20% for other reserved candidates was fixed after the issue of the advertisement contrary to the scheme of the examination, without providing the applicants due notice. The Tribunal, relying on the decisions of the Hon'ble Supreme Court in Manjusree's case (supra) and Hemani Malhotra's case (supra), held that the stipulations contained in the advertisement mandated that the candidates' performance, by totalling their marks in the written examination as well as in the interview, would only be taken into account, thus ruling out the further imposition of any other unspecified condition. Therefore, in the absence of any discretion reserved with the Commission to impose a minimum cut-off marks or performance parameter at a later stage, the Commission could not have midway imposed such a criterion. Accordingly, the Tribunal set aside final results for the post of Sub Inspector (Executive) in Delhi Police, 2012, and directed the respondents 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. Page 10 of 15
OA 1830/13 11 Sachin Kumar v. Chairman, SSC & ors
11. The Tribunal's decision in Sh. Mandeep's case (supra) has been upheld by the Hon'ble High Court of Delhi, vide judgment dated 4.8.2014 passed in W.P. ( C ) No. 4832 of 2014 and other connected Writ Petitions (Staff Selection Commission through its Chairman v. Parveen & others).
12. Following its decision in Parveen's case (supra), the Hon'ble High Court of Delhi allowed W.P. (C ) No. 1456 of 2013 (Vijay v. Union of India and others), which was cited by Mr.S.M.Arif, learned counsel appearing for the respondents. In Parveen's case (supra), the Hon'ble High Court of Delhi directed the respondents to re-consider the case of the petitioner for his appointment to the post of Sub Inspector in CISF on the basis of combined merit and interview marks and if based on that the petitioner succeeds, then the respondents shall proceed to appoint the petitioner on the said post, subject to his fulfilling other eligibility conditions.
13. We have carefully perused the records. The Notice of CGLE- 2012 stipulated Interview-cum-Personality Test for several categories of interview posts, including the post of 'Assistant in CSS', in PB-II Rs.9300- 34800/- with Grade Pay of Rs.4600/- and Rs.4200/- classified as Group 'B' and Group 'C' respectively. In the Notice of CGLE-2012, there was no whisper about any cut-off marks in the interview. The Notice of CGLE- 2012, vide its paragraph 12.A, stipulated that after the Examination and the Interview/Skill Test/Computer Proficiency Test, wherever applicable, the Page 11 of 15 OA 1830/13 12 Sachin Kumar v. Chairman, SSC & ors Commission would draw up the All India Merit List for each category of post/State and as many as candidates as were found by the Commission to have qualified in the Examination shall be recommended for appointment for each category of post/State up to the number of unreserved vacancies available, taking into consideration option for the posts. The Commission would recommend the candidates in the Merit List on the basis of the aggregate marks obtained by the candidates in the written examination and interview (wherever applicable) and preference exercised by the candidates in the Application Form for different posts/States at the time of Tier II/Interview/Skill Test/Computer Proficiency Test depending on the number of vacancies available. Once the candidate has been given his/her first available preference, he/she will not be considered for the other options. It is, thus, clear that the Commission, by fixing cut-off marks of 25 for UR category of candidates and 20 for all reserved categories of candidates in the interview, changed the mode of selection to interview posts, as stipulated in paragraph 12.A of the Notice of CGLE-2012. In the absence of any discretion reserved with the Commission to impose cut-off marks or performance parameter at a later stage, the Commission could not have imposed such a criterion. As a result of such fixation of cut-off marks in the interview, though the applicant, as an OBC candidate, scored in aggregate 352.75 marks in the written examination and interview, he could not be selected and recommended for appointment to the post of Assistant in CSS as his first preference, whereas the last candidate belonging to OBC category Page 12 of 15 OA 1830/13 13 Sachin Kumar v. Chairman, SSC & ors scoring in aggregate 345.50 marks in the written examination and interview was selected and recommended for appointment to the post of Assistant in CSS.
14. In view of the settled proposition of law, as discussed in the preceding paragraphs, we have no hesitation in holding that the Commission could not have midway fixed cut-off marks in interview, and that the Commission ought to have declared the final result of the candidates for selection to the interview posts, including the post of Assistant in CSS, on the basis of their aggregate marks scored in the written examination and interview. Therefore, the final result published by the Commission for the interview posts becomes indefensible.
15. Now it has to be seen as to whether the applicant can be granted the reliefs as claimed by him in the present O.A. As noted earlier, the applicant has prayed for issuing a direction to the Commission to follow the procedure of selection in the Advertisement/Notice of CGLE-2012 and as per the practice adopted in the previous years, and to select him for the post of Assistant in CSS with all consequential benefits. The final result of the selection of candidates for both interview and non-interview posts was published by the Commission in February 2013. The Commission nominated the candidates selected for interview posts, including the post of Assistant in CSS, soon after the final result was published. The candidates selected for interview posts, including the post of Assistant in CSS, must have in the meantime been appointed. In the present O.A. the applicant has Page 13 of 15 OA 1830/13 14 Sachin Kumar v. Chairman, SSC & ors not prayed for quashing the final result for interview posts. Therefore, at this stage, no direction can be issued by the Tribunal to the Commission to follow the procedure of selection as mentioned in the Advertisement/Notice of CGLE-2012. There is no averment made by the applicant in his pleadings as to whether there existed any OBC vacancy in the post of Assistant in CSS after the nomination of candidates was made by the Commission pursuant to the CGLE-2012. In the meantime, more than two and half a years have elapsed. The applicant has not impleaded as party-respondents the selected candidates belonging to OBC category, who scored less marks than the marks scored by him and were nominated by the Commission for appointment to the post of Assistant in CSS. He has also not impleaded the Union of India as a party-respondent in the present O.A. Any direction to the Commission to select and nominate the applicant to be appointed to the post of Assistant in CSS by following the procedure of selection as mentioned in the Advertisement/Notice of CGLE-2012 will not only adversely affect the interests of several persons who are not party-respondents in the present O.A. before this Tribunal, but also give rise to similar claims being made by several other candidates, who scored less marks than the cut-off marks in the interview and were not selected for interview posts on the basis of aggregate marks scored by them in the written examination and interview. The applicant having failed to assail the final result of candidates selected for interview posts, including the post of Assistant in CSS, and also to implead Page 14 of 15 OA 1830/13 15 Sachin Kumar v. Chairman, SSC & ors the selected candidates and the Union of India as party-respondents in the present O.A., we are not inclined to grant the relief claimed by him.
16. However, on the facts and in the circumstances of the case, and considering the grievance of the applicant that having already made three attempts for selection and appointment to the post of Assistant in CSS, he would be ineligible for making fourth attempt to be selected and appointed to the post of Assistant in CSS, we direct the Commission to move the Government of India for considering the matter of taking a decision that the candidates, who appeared in CGLE-2012 and opted for selection and appointment to the post of Assistant in CSS, like the applicant in the present O.A., will be given one additional attempt for selection and appointment to the post of Assistant in CSS, subject to their fulfilling other eligibility conditions of the CGLE.
17. With the above observation and direction, the O.A. is disposed of. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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