Central Administrative Tribunal - Madras
All India Sc And St Railway Employees ... vs Union Of India (Uoi) And Ors. on 23 August, 1999
JUDGMENT
S. Bapu, Member (A).
1. As a common issue is involved in these applications they are disposed of by this common order.
2. In these applications except O.A.No. 367/99 the validity of selection for various categories of Group 'D' posts in Integral Coach Factory (I.C.F.) Chennai of 917 candidates whose Roll Numbers were published in the Indian Express and Daily Thanthi dated 30.1.99 is assailed. The prayer in these applications is for setting aside the select list and directing the respondents to make fresh selection or for selecting and appointing the applicants.
3. The applicant in O.A.No. 367/99 is one of the selected candidates. He has filed the application to direct the official respondents to complete the selection process and appoint him.
4. Employment notification No. 1/1995 dated 7.9.95 was issued by the I.C.F, inviting applications from candidates who fulfilled the eligibility conditions prescribed in the said notice for filling up 330 posts of Khalasis in the scale of pay of Rs. 750-940 in the I.C.F. 19% of the posts were reserved for candidates belonging to Scheduled Caste communities and 1 % for candidates belonging to Scheduled Tribe communities. 27% of the posts were reserved for candidates to Other Backward Classes. It was also mentioned that total vacancies and reservation included 3% for Physically Handicapped (PH) and 20% for Ex-servicemen. It was indicated therein that the number of vacancies was provisional and was likely to vary. The last date for receipt of applications was 6.10.95.
5. It is stated that there were 58675 applications. After verification 32563 candidates were found eligible and were called for interview. The process of selection consisted of viva voce test alone. The candidates called for interview were allotted Roll numbers community wise. Blocks of Roll Numbers allotted were as follows:
Category of candidates Roll Numbers.
SC/ST candidates 10001 to 30300 Other Backward Classes (OBCs) 40001 to 49000 Un-reserved candidates (URs) 50001 to 60000 All candidates who were called for supplementary interview on the last two days because of non-receipt of earlier call letters were allotted numbers from 60001 onwards. There were no candidates in the block from 30301 to 40000.
6. All the 32563 candidates found eligible were called for interview during July 1996-February, 1997. Selection Committees for interviewing the candidates were formed as per the instructions contained in the Railway Board's letter dated 19.7.96. When the interview process was on, the validity of the composition of Committees as per Railway Board's letter dated 19.7.96 was challenged in O.A.No. 28/97 before this Tribunal on the ground that the Railway Board's letter dated 19.7.96 was contrary to para 179 of the Indian Railway Establishment Manual (IREM) dealing with recruitment of Group 'D' staff. The Tribunal struck down the Rail way Board's instruction dated 19.7.96. Thereafter the Railway Board issued fresh instruction on 29.4.98 for constituting the Committees with serving/retired Railway officials as per para 179 of the IREM. Based on the revised instructions from the Railway Board, all the candidates interviewed during 1996-97 had to be subjected to fresh interview. When the second round interview process was on, one Srinivasa Rao and 243 others filed O. A. No. 543/98 contending that the course completed Act Apprentices should be given preference to others in the selection and further the principle of seniority among the Apprentices must be followed after publication of such a seniority list. In the course of arguments a fresh plea was also raised that candidates should have been short listed for the interview. The O.A. was dismissed by an order dated 17.9.98.
7. The second round interviews were conducted from 22.6.98 to 28.9.98 spread over 75 days. The candidates were interviewed by Committees consisting of four members each. On most of the days, three committees interviewed the candidates. On the last two days of the interview, two committees only sat. In all, there were 220 Committees which interviewed the candidates.
8. Out of 32563 candidates called for interview 25271 only attended the interview. All the ST candidates numbering 2079 were interviewed from 22.6.98 to 25.6.98. SC candidates numbering 18184 were interviewed from 26.6.98 to 14.8.98. Thereafter, while one Committee interviewed unreserved (UR) candidates numbering 3142, the other two Committees interviewed Other Backward Classes fOBC) candidates numbering 9158. On the last two days, all category of candidates were asked to appear without any separation because the last two days were allotted for supplementary candidates.
9. The Committee members were required to award marks under the following four heads.
1. Personality/Address 40 marks
2. Ability to do the job 40 marks
3. Technical/Academic qualification 10 marks
4. Sports etc. 10 marks The Committee members were given a written brief setting out norms as to how marks are to be awarded under the last two heads. As regards the first two heads, they had to make their own individual assessments of the candidates based on their performance during the interview and no specific guidelines were given to them. However, marks under the head "ability to do the job" should be based on the candidates ability to lift a weight of 35 kgs without exhibiting any physical strains. Each member of the committee was required to award marks separately. The marks awarded by each of the four members of the Committee were totalled and averaged and that was taken as the mark for any candidate.
10. After the interviews were over, the mark statements sealed in 220 covers were sent to the Railway Recruitment Board (RRB) for data entry and formation of draft panel. The sealed covers containing the mark statements were handed over on 12.10.98 to the RRB and the RRB returned the mark list along with the merit list on 22.12.98. Thereafter the select panel was published in the Newspapers of Indian Express and Daily Thanthi on 30.1.99.
11. It is necessary to mention that though the notification No. 1/95 dated 7.9.95 inviting application mentioned 330 vacancies only, the Railway Board by its letter dated 17.5.96 communicated to the General Manager ICF the decision that in addition to 330 Group 'D' vacancies ICF may conduct open market recruitment against 587 more Group 'D' vacancies during the recruitment process already in progress and prepare a panel for filling up 917 vacancies, That is how the select panel consisted of 917 candidates.
12. Since the number of vacancies increased from 330 to 917, the respondents decided to form panels for the categories of Khalasis, Vendors, Mali, Peon, Gangman and Sanitary Cleaners and thus they formed panels of these six categories as per rules as below:
Khalasis 423 Vendors 86 Mails 69 Peons 112 Gangman 33 Sanitary Cleanier 194 Total 917 1 3. The distribution of selected candidates under the general and reserved quotas wasas follows:
GENERAL QUOTA Selected Other than SC/ST/OBC OBC SC sr Total On merit
1. General quota 170 138 13 104 425
2. PH 2 1 _ 3
3. Ex-servicemen 3 3 Total 172 142 13 104 431 Beyond Merit l. PH 5 5
2. Ex-servicemen 51
-51
Total 56 56 Grand Total 228 142 13 104 487 RESERVED QUOTA Selected against OBC SC ST Total
1. OBC/SC/ST quto 118 159 14 291
2. PH quota 10 10
3. Ex-servicemen quota 117 12 129 Total 245 171 14 430
14. When the selected candidates were being informed of their selections, the present applications were filed and the Tribunal passed orders of status quo.
15. It is convenient at this stage to refer to the various allegations made/contentions raised by the applicants and the points made in the replies filed by the respondents.
16. The allegations and contentions in O.A.No. 93 of 99 are as follows:
During the selection process, the Respondent No. 2 viz. General Manager, ICF was represented by respondent No. 4 viz. G.M. Panchatcharam, Chief Personnel Officer. He was authorised to appoint four selection committees consisting of three persons each out of whom one was a retired person of the ICF and two others were working in the Personnel Department or elsewhere. He appointed the following four persons who were his colleagues at one time or the other (1) Arputharaj, (2) Deenadayalan, (3) Rosario and (4) P.I. Varghese. The respondent No. 5 Smt. Rajammal Joseph, Assistant Personnel Officer, was also appointed as one of the members. The respondent No. 4 prevailed upon the Respondent No. 5 to select candidates of his choice. The respondent No. 4 in fact appointed such persons to the selection committees who would listen to him. After many complaints, the respondent No. 4 was transferred as Chief Personnel Officer, Southern Railway. Marks were awarded to the candidates in the manner suggested by the respondent No. 4. There were also interpolations and manipulations. More than one candidates was selected from one and the same family. Two sons of one Sunder Rao who is a driver to Respondent No. 2 were selected. Likewise, three sons of one Mantri were selected. The said Mantri is running a scooter repair workshop where the scooter of the fourth respondent is attended to. The idea of the selection is to give employment to the dependents of serving and retired employees. But the respondent No. 4 selected candidates in whomsoever he had special interest. The respondent No. 4 adopted the method of bunching of candidates together for allotting registration numbers. From SI. Nos. 10301 to 10450/79 candidates were selected. They are all close to the respondent No. 4. From Sl. Nos. 32000 to 42000 only 5 were selected. The convention of selecting wards of retired and serving employees has been thrown to the winds. Established procedures were not followed. There was no fairness in selection. The fourth respondent selected members to the selection committees who would dance to his tunes. The entire selection is manipulated. Entire records relating to the interview and selection should be called for and perused to ascertain the magnitude of illegality and irregularity committed by respondent No. 4. The respondents ought to have fixed norms for the candidates to apply. In the absence of such norms, the respondent No. 4 had a free hand in selecting the candidates of his choice. There was no disqualification and who ever applied was called for interview. Selection is arbitrary, illegal and not bona fide. No order was passed on the representation dated 30.12.98 of the applicant sent to the General Manager, ICF. In that representation it was alleged that the selection had not been conducted in a fair manner and request was made to order fresh interview.
17. The reply of the Official respondents 1 to 3 reads as follows:
The present application is in the nature of a PIL and is not maintainable. The applicant association has not stated as to whether any person who had applied for the post is a member of the applicant's association. The association as such cannot be an aggrieved person. The second applicant has not stated whether he is a member of the first applicant's association and whether he had applied for the post. Therefore, the second application also cannot be said to be aggrieved. The applicant's association is not a recognised association. It is only a faction. The employment notice itself contains qualifications and the age limits. There are no special norms prescribed by the Railway Board for selecting candidates and to give preference to wards of retired or serving Railway employees. Members for the interview committees were selected as per the norms laid down by the Railway Board. As there were about 35000 candidates to be interviewed, to expedite the process of selection, three committees were constituted for each day. It is true that Shri Arputharaj, Rozario, Verghese, Deenadayalan and one Sanjeev Raj were associated with the committees for interview, All these were retired Railway Officials. The first three represented minority community and the last two represented "SC" community. There is nothing wrong in associating these retired officers in the selection process. In fact, there were lot of difficulties in getting adequate officers for the interview committees. Even requests made to Southern Railway and also other Central Government offices for nominating suitable officers did not elicit response. Southern Railway came to the rescue in the last fortnight and spared two officers in the minority community. There is absolutely no irregularity in the formation of the interview committees. The respondent No. 4 was borne on Stenographer's cadre. Arputharaj, Deenadayalan and Rozario belong to Clerical cadre. Arputharaj, Dcendayalan and Rozario after promotion as APOs worked under respondent No. 4. But that would not preclude the Respondent No. 4 from nominating them on the selection committees. P.I.Varghese never worked under respondent No. 4, During interview in 1996-97 nomination of officers to sit on the Committees was completely done by the then CPO. However, in the case of re-interview in 1998, nomination of the committee was done by respondent No. 4 for the first two days only namely 22.6.98 and 23.6.98. Thereafter he authorised Dy. CPO to do the nominations every day. Nomination was kept secret. The allegation that the respondent No. 5 acted subject to influence by Respondent No. 4 is baseless. The respondent No. 5 at the material time was promoted to officiate as APO Gr. 'B' on 11.3.98 ad hoc basis pending selection of a regular incumbent. She is a Christian and also ST. Therefore, she was put on the selection committee to represent either the ST or the minority community. There were only 4 Assistant Officers in the Personnel Department including the respondent No. 5. It is mandatory to have one personnel officer and SC/ST minority officer on the selection committee and hence respondent No. 5 was associated. The regular promotion of the respondent No. 5 depended upon her passing the written test and viva voce. It is not correct that the respondent No. 4 had exclusive authority to regularise the promotion of respondent No. 5. In fact the respondent No. 5 did not pass the written test. Therefore, the allegation that the respondent No. 4 prevailed upon the respondent No. 5 in the matter of selection of candidates is baseless and mischievous. Two sons of one Sunder Rao driver to the respondent No. 2 were selected. But that was done on their own merit based on the marks awarded by the Selection Committee. It is not possible to disqualify anybody on the ground that any of their sister or brother are included in the panel or are already working. As regards the allegation that three sons of Mantri were selected, it is not true. Mantri had retired from ICF long back. His first son was appointed as Mali in 1981. His second son was engaged as ELR peon in 1985. They were later transferred to ICF. Third son applied for the post and attended the interview and was selected. There is no rule that more than one candidate from one and the same family cannot be appointed. The allegation that only 5 candidates were selected between Roll Nos. 32000 and 42000 is not well founded because there was no candidate with Roll Nos. 30301 to 40000. Any candidate from the reserved community coming out on his own merit has to be accounted against general quota. The fact that more STcandidates were empanelled was due to the candidates own merits as assessed by the Committees which interviewed them. The impugned selection was made in accordance with the guidelines given by the Railway Board and there is no infirmity, illegality or irregularity in the procedures adopted by the respondents.
18. In a separate counter filed by the respondent No. 4, reply of the official respondents 1 to 3 has been adopted. All personal allegations levelled against him have been denied. During the days of interview, surprise checks were also conducted by the different officers including vigilance department to ensure there was no malpractice. The interviews were over on 28.9.98 and there after, decision was taken to hand over all the mark sheets to the RRB. He was transferred on 30.10.98 from ICF to Southern Railway by the Railway Board and he was relieved from ICF on 13.11.98. The alleged 79 candidates mentioned by the applicant are neither relatives nor close to him and therefore the allegations are motivated.
19. Separate counter has been filed by the 5th respondent also. All the allegations have been denied. Respondent No. 4 did not give her any instructions for selection of any particular candidate. As a selection committee member, she acted according to her conscience in awarding marks based on the performance of candidates during the interviews.
20. The applicants have filed a rejoinder. Briefly stated it runs as follows:
Selection is contrary to the instructions contained in the IREM. Normally, candidates to be called for interview should be 3 to 5 times the number of vacancies. In this case as many as 32563 candidates were called for interview. Calling for applications should be restricted to only from amongst the local candidates. Preference should be given to local candidates and wards of employees retired or on the verge of retirement. Wards of employees who have completed ITI or Apprentice certificate and who belong to SC/ST community should be given preference. Candidates with the ITI qualification and with the Apprentice Certificate should be called from local employment exchange. As per the percentage of reservation for various groups, the selection should have been as under :
(a) SC 174
(b) ST 9
(c) OBC 248
(d) Ex-servicemen 183
(e) Physically handicapped 28
(f) Unreserved candidates.275
Total 917 However, the actual recruitment is different. No candidates have been selected from the wards of ICF employees. The selection of 118 ST candidates as against 9 to be selected is bad in law. The idea of selection of local candidates has been given a go bye. It is evident from the distribution of the selected candidates. As regards OBC only 248 should have been selected. But the department has selected 387 candidates. As regards PH candidates 28 should have been selected. The department has selected only 18. Selection has been done at the whims and fancies of respondent No. 4. Respondent 4 has not given any importance to the selection of local candidates. He has resorted to selection of 654 candidates from other states and used the selection committee to his advantage. On the first two days when the respondent No. 4 played a vital role, 78 candidates were selected out of 150 interviewed. The applicant association is entitled to file the application. It is immaterial that the applicant association is not a recognised one. As per the instructions of the Railway administration, all the factions in the SC/ST Association have to be recognised till the elections are complete and new office bearers assume charge. The applicant association is a registered association and has aright to file the applications. The respondents are making inconsistent statements. The respondent No. 5 is awaiting confirmation as Assistant Personnel Officer and she was selected as a Committee member to further the interest of respondent No. 4. The respondent No. 4 even saw to it that vigilance officer Satyanarayanan proceeded on leave and thereafter on voluntary retirement. The respondent No. 4 played a vital role in the matter of selection. This is admitted by the respondents that all the officers associated with the selection committees were given a brief in the meeting room on 20.6.98 and the norms to be followed in the selection. The allocation of marks gave room for arbitrary awarding of marks. It is the policy of the ICF that only one ward of serving Railway employee and on the verge of retirement and that of the retired employee should be given employment. More than one ward cannot be given employment. Selection of a large number of candidates in the first two days has to be properly explained.
21. The official respondents 1 to 3 have filed a reply to the rejoinder stating that the rejoinder filed by the applicant is totally different from the application and a new case on a new ground has been sought to be made out and hence has to be rejected. The applicants' point that candidates should have been called for the interview only at 3 to 5 times of the vacancies has already been dealt with by the Tribunal in O.A. No. 543/98. Para 11 of the order in that O.A. is relied upon. The selection being an open recruitment, any restriction by calling candidates from local area namely Chennai Metropolitan area or wards of serving/retired employees alone will infringe constitution of safe guard in regard to equality of opportunity in public employment. No where such a provision has been made in the recruitment rules as to confine the consideration to the wards of serving/retired employees. It is also not correct to confine the selection to candidates who have completed the ITI and Apprenticeship and belonging to SC/ST community. In a combined recruitment, all candidates should be treated equal. When the minimum qualification for the Group 'D' post is only VIII std. it is not possible to make requisition of candidates with ITI or Apprenticeship qualification alone. Necessary requisition was sent to the local employment exchanges as per para 179(vi) of the IREM. The reservation percentages laid down under the rules are as follows:
sc 19 ST 1 OBC 27 Total 47 In addition, horizontal reservation of 20% for ex-servicemen and 3% for PH candidates are available. These two categories of candidates are to be adjusted in the communities to which they belong. In other words the reservation for ex-servicemen and PH candidates does not erode the general quota. At the time when the employment notification dated 7.9.95 was issued, the reservation percentages for various categories were linked to the vacancies. After the Supreme Court's decision in R.K. Sabharwal v. State of Punjab, AIR 1995 SC 1371 = 1995(3) SLJ 227 (SC) and Union of India v. Vir Pal Singh Chauhan, AIR 1996 SC 442=1996(1) SLJ 65 (SC) and Union of India v. J.C.Malik, 1996(1)SLJ114(SC), the reservation was made on the basis of number of posts in a cadre. Also though the original notification was for recruitment of 330 vacancies, the Railway Board approved recruitment for 917 vacancies. In view of these developments, the distribution of vacancies among the various categories came to be as follows:
Sl. No. Category SC ST OBC Others Total
1.
Khalasi 80 4 114 225 423
2. Vendor 16 1 25 44 86
3. Mali 13 1 23 32 69
4. Peon 18 6 20 68 112
5. Gangman 6 9 18 33
6. Sanitary Cleaner 38 2 34 100 194 Total 171 14 245 487 917 It is also to be remembered that candidates who were selected on merit are not to be accounted against reserved points. All those candidates with merit position upto 431 regardless of the communities had been treated as unreserved and accounted against the general quota of 487. The requisite number of SC, ST and OBC against the reserved quota of 171, 14 and 245 respectively have been found beyond the merit position of 431. However, the requisite number of PH and Ex-servicemen candidates were not available from SC ST and OBC alone. Therefore, under the un-reserved category the line was drawn at rank 431 for candidates other than PH and Ex-servicemen and 56 of PH and Ex-servicemen candidates who did not belong to SC/ST/OBC categories who were selected, were added to the unreserved category and that is how the un-reserved number comes to 487. The cut off rank for various groups was as follows:
SI. No. Category of candidates Cut off rank
1.
Unreserved (UR) 451
2. Scheduled Caste (SC) 1411
3. Scheduled Tribe (ST) 613
4. Other Backward Classes (OBC) 671
5. Ex-servicemen 11068
6. Physically Handicapped
(a) Ortho Handicapped 1289
(b) Deaf and Mute 11507 The applicant cannot be aggrieved over empanelment of more SC/ST candidates. 262 candidates have been selected from among the wards of serving/retired employees of ICF and another 205 from among the wards of other Railway employees both aggregating to 457 i.e. nearly 50% of the total intake. It is also to be noted that there is a horizontal reservation of 20% for ex-servicemen which works out to 183 candidates. Naturally there cannot be any candidate from among the wards of ICF employed under the category of ex-servicemen. If this number is excluded from 917 the percentage of wards of ICF and other Railway employees will work out to 63.6% of the total numbers selected. There is no scope for taking blind persons in the production unit. Only 18 candidates consisting of 9 orthopedically handicapped and 9 deaf & mute were selected against the PH quota. The first applicant is only an Association of SC/ST Railway employees. Candidates coming for recruitment cannot be a member of the association of serving employees. Therefore, the first applicant cannot claim to represent the candidates even before their appointment and on this ground alone, the O.A. is not maintainable. Only a candidate who appeared for selection can be aggrieved over his non-selection. Selection has been done on the basis of performance of the candidates in the selection. There has been no violation of the set procedure/guidelines. Leave taken by Satyanarayan, the vigilance officer and his voluntary retirement was not at the instance of 4th respondent. The allegation is baseless. The allocation of marks under four heads is being followed in the Southern Railway also. The same allocation pattern had been followed in the selection held by the respondents in 1989-90. There has been no procedural irregularity and arbitrariness in the recruitment process. The O.A. is liable to be dismissed for non-joinder of necessary parties since the selected candidates whose selection is being questioned in the present O.A. have not been impleaded as party respondents.
O.A. Mo. 367/9922. The applicant is one of the selected candidates. He has filed the application to direct the official respondents to complete the selection process and appoint him. No reply has been filed by the respondents.
O.A. No. 103/9923. Application filed for declaring the selection process illegal. The applicant underwent Apprenticeship in the Carriage and Wagon Workshop in the trade of Carpenter and passed the National Council Trade test. First he was interviewed on 17.2.97. Again he was interviewed on 25.9.98. Interview was not conducted properly. No preference was given to him for passing the National Council Trade Test as a Carpenter. He is son of a retired employee. No preference was given for that also. 55 persons were selected between RollNos. 10305 and 10397. However, only 2 were selected between Roll Nos. 30241 and 40016. So selection is arbitrary.
24. In the reply filed by the official respondents all the allegations have been denied. Rules do not provide for any special privilege for wards of Railway servants. Only applications can be submitted direct without routing them through employment exchange. Thereafter all the applicants are to be treated alike. Carriage and Wagon Workshop, Perambur and ICF are different establishments. ICF by itself trains Apprentices under the Apprentices Act. The guidelines laid down by the Supreme Court in UP Road Transport Corporation case provide that other things being equal between the candidates, a course completed Act apprentice trained by the institution (which is making the recruitment) should be given preference over a candidate who is not such an apprentice. Privileged treatment would arise only when there is a tie at the cut off marks stage. The applicant's merit position in the list is 8684, i.e. far below the cut off stage. Therefore, he was not selected.
O.A. No. 260/9925. Application filed for direction to the official respondents to select and appoint the applicant. The applicant is a Diploma holder in Refrigeration and A/C Mechanic. He was an Apprentice in the Railways. It is proper that the technical expertise in the concerned field should have been preferred. Candidates should have been short listed. Persons not possessing requisite qualifications, not having technical knowledge have been selected. Selection is biased and done for extraneous considerations. Law laid down by the Supreme Court in U.P. Parivahan Nigam v. Shishukhs case,(1995)2 SCC 1, and the decision of the CAT in O.A. No. 543/98 have not been followed. Selection is malafide due to extraordi-
narily large number of candidates called for interview. Failure to short list and include better qualified Act Apprentices is bad in law. Selection is violative of the procedure in the IREM. No reply has been filed by the respondents.
O.A. No. 202/9926. Application has been filed by Indian's Welfare Federation and one K. Ponnuvel. Application is for quashing the selection announced and for direction to the respondents to include in the selection list those members of the applicant Federation who appeared in the interview. Allegation is that selection is discriminatory, arbitrary and is vitiated by malafide intentions and ulterior motive. Applicant Federation had filed a Writ Petition W.P.No. 14122/95 and WMP 22468/95 in the Madras High Courts challenging the action of the respondents in permitting wards of Railway employees and SC/ST candidates to file applications direct without routing them through Employment Exchanges. Pursuant to the order in the Writ Petition, 28 members of the Applicant Federation were sponsored by the Employment Exchanges, 25 attended the interview but none was selected. No reply has been filed by the respondents.
O.A. No. 294/9927. Select list has been challenged. The prayer is for setting aside the select list and directing the respondents to hold fair selection by short listing the candidates in a reasonable manner. Selection made is arbitrary, malafide and illegal. Applicants are persons who have undergone Apprenticeship in various trades in the Railway's itself. At the end of the training, they have also undergone an examination as per the Apprenticeship Act and have qualified in it. The respondents have selected candidates who are less qualified than the applicants. Selection is malafide due to extraordinarily large number of candidates called for interview as compared to the number of posts available. The ICF should have short listed the candidates to include only technically qualified persons. The Supreme Court has held in the case of U.P. State Transport Corporation v. U.P. Parivahan Nigam Bhishukhs Berozgar Sangh (supra) that it would be a sheer wate of human resources and highly irrational if the services of the trained personnel were not utilised. It defies logic as to why the respondents should resort to inviting candidates from outside wlien thousands of qualified apprentices trained in the Integral Coach Factory itself are awaiting appointment. Since the Supreme Court has said preference has to be given to apprentices, it is only proper that for recruitment to Group 'D' posts of Khalasis where no other factor like technical expertise, etc. is relevant for selection the respondents should confine the selection only to apprentices as done in the past or at least give definite preference to the Apprentices, by shortlisting the candidates for selection. 313 candidates who do not possess any technical qualifications have been selected. The applicants are better suited than those 313 candidates. Further persons who completed Apprenticeship after the applicant have also been selected. For example more number of candidates belonging to one station from where one of selection committee members came have been appointed. Reply has not been filed by the respondents.
O.A. No. 153/9928. Application runs on the same lines as in O.A.No. 294/99. Separate replies have been filed by the official respondents and 2 private respondents. Allegations have been denied. Of the 917 selected, 604 possessed technical qualifications. Out of these 604 candidates 176 were apprentices trained in the ICF. Khalasi post does not require in fact any technical qualifications as Act Apprenticeship.
29. We have heard the learned counsel for all these applicants and also the respondents. Mr. Peter Francis the learned counsel for the applicant in O.A.No. 93/99 argued that the whole selection process is vitiated for more reasons than one. He emphasised that employment notification itself was not in accordance with paragraph 179 of IREM, the local areas/regional basis with reference to the recruitment unit was not adhered to, very large number of candidates were called for interview contrary to the maximum number of 3 to 5 times the vacancies, selection was not in accordance with the quota of reservation for each category, the respondents erred in selecting Graduates for appointment, the spread of marks for the interview led to arbitrary marking system and also favouritism and the 4th and 5th respondents manipulated the selection.
30. Shri Isaiah, the counsel for the applicant in O.A. No. 202/99 adopted the arguments of Mr. Peter Francis and further said that a fresh notification specifying additional number of vacancies should have been issued.
31. Ms. Vaigai, the learned counsel for the applicants in O.A. No. 153/99 and 294/99 argued that no rational and fair procedure was followed for the selection, that the spread of marks for the interview under the four heads was uneven and led to distortions, that it was strange that there were norms laid down for the two heads which carried only 20% of the marks but there were no norms or guidelines for 80% of the marks and the respondents have not even stated that there were any guidelines for the various Committee Members for awarding marks under the heads which carried the 80% marks, and as the respondents did not resort to shortlisting the candidates for interview, each candidate would have been evaluated in less than two to three minutes and the time would not have even been sufficient to test the ability of the candidate to lift the 35 kg. weight, and further respondents were also in error in not giving preference and due weightage to technically qualified candidates.
32. Shri Arun Kumar and Shri V. Prakash, the counsel for the selected candidates contended that the candidates who participated in the interview cannot question its validity now and also about the spread of marks and further all the allegations regarding the malafides of the selecting authorities were vague.
33. Shri R. Thyagarajan, the learned senior advocate for the respondents went through the reply affidavits filed on behalf of the respondents and emphasised that the whole process of selection was done in a fair manner and all the allegations levelled against the respondents and the selection process were based on suspicion and prompted by non selection of the candidates concerned. He took pains to explain how the various instructions laid down by the Govt. of India and the Railway Board with regard to the quota of reservation for various groups such as SCs, STs, PH and Ex-Servicemen, OBC were followed without any deviation. He also questioned the validity of the attempt of the counsel in O.A. 93/99 to enlarge the scope of the original application by bringing in fresh and additional points in the rejoinder.
34. Both the learned counsel for the applicants and for the respondents cited several cases in support of their arguments. All the cases cited are being discussed at the appropriate place while dealing with the issues.
35. In the course of hearing Peter Francis, learned counsel for the applicants in O. A.93/ 99 submitted that the ICF General Manager set up a Committee of Senior Railway officials to go into the selection process in view of the complaints received and give a report and the Committee has also submitted its report. The respondents were directed to make available the records of the selection and also the Committee's report. The respondents complied with the direction. We had the benefit of perusing the Committee's report.
36. In our view the following questions arise for decision in these application :
1. Whether the applications are maintainable?
2. Whether the percentages of reservation for SC/ST/OBC/PH/Ex-Servicemen candidates have been correctly applied?
3. Whether the recruitment ought to have been confined to the local area of the recruitment Unit? In other words, whether the candidates for selection ought to have been called from the local area of the recruitment unit only?
4. Whether the candidates for interview should have been shortlisted in view of the disproportionately large number of applications as compared to the vacancies for filling up of which selections were made?
5. Whether the marks set apart for the interview was on the high side?
6. Whether the spread of marks under the four different heads ensured uniformity in the selection or did it give room for wrong assessment and awarding of unmerited marks and consequently (sic) the whole selection process?
7. Whether the technically qualified/trade tested candidates and course completed Act Apprentices should have been given preference in the matter of selection?
8. Whether the non-joinder of candidates whose selection has been announced in the newspapers is fatal to the applications under consideration now?
9. Whether the selection was malafide and vitiated by bias, undue influence etc.
10. Whether there was any impropriety in the selection of more than one candidate from the same family as alleged?
11. Any other issues affecting the selection.
37. We now proceed to answer these questions in the light of the evidence placed before us, the arguments of the learned counsel for the applicants and the respondents and the report of the Committee set up by the General Manager, ICF.
38. For filing application under Section 19 of the Act, not only proper cause of action must have arisen but also the applicant should have locus standi to present the application. There is no difficulty in saying that a cause of action had arisen. The difficulty of locus standi arises only in the case of the application in O.A. 93/99. O. A.93/99 had been filed by All India SC/ST Railway Employees Association, ICF Zone and another individual applicant by name Antony Raj.
39. It is the contention of the respondents that the first applicant in this case is not a recognised union that it is only a factional group and it cannot be an aggrieved party in the matter of recruitment and hence it cannot be an applicant. It is the case of the applicant that it is a registered union and in its capacity as a registered union of employees it is entitled to file the application questioning the selection process. It is also mentioned that elections to the SC/ST Association had not yet been held and therefore, there is no question of any recognised union.
40. We have considered the matter. The first applicant in O.A.93/99 is a registered union of employees. Further, the application in O.A. 93/99 is not only filed by a registered union but also by another individual applicant who has stated that he was one of the candidates who had applied for the job. A registered union of employees has the locus standi to file an application questioning irregularities committed by the respondents in making direct recruitment. Therefore, the application presented by the association along with another individual applicant who is the son of the working President of the Association is maintainable. It has been held so in Bombay Customs Group D Officers' Union and Ors. v. UOI and Ors. (1992) 21 ATC 467=1992(3) SLJ 73 (Bombay) (CAT). There is no dispute about the maintainability of the other applications. In the circumstances, all the applications are held to be maintainable and are dealt with accordingly.
41. At this point it is necessary to deal with the respondents contention that the applicant in OA 93/99 has sought to make out a new case in the rejoinder and this cannot be allowed. It is true that it was held in the case of S. Thyagarajan v. Union of India (1990) 13 ATC 51, that it is not possible by way of rejoinder to modify the whole complexion of the case and substitute a new cause of action for that put forth in the main application in the first instance. In that case, in paragraph 8 of the order, the Tribunal made it clear when and to what effect a rejoinder may be filed and proceeded to state how in that particular case, rejoinder was not acceptable :
"From the above, it is clear that a 'rejoinder' may be filed before this Tribunal with the permission of the Tribunal, if any facts have been put forth by the defendant, which if accepted by the Court, would defeat the case of the plaintiff. However, it is not possible by way of a rejoinder to modify the whole complexion of the case and substitute a new cause of action to the cause of action which was put forth in the main application in the first instance. In this case, it is seen that the applicant has completely given up all his pleas on the cause of action on which the application was based and now under the guise of a 'rejoinder' wants to propel an entirely new case, which is not admissible. Therefore, in the present application, we cannot take note of such a rejoinder and the pleas contained therein and afford the applicant any relief, on the basis of such a rejoinder."
42. In the case on hand, the facts are different. When once it is accepted that a rejoinder may be filed before the Tribunal with the permission of the Tribunal, if any facts have been put forth in the reply statement by the respondent which if accepted by the Court would defeat the case of the applicant then, rejoinder will have to necessarily contain replies to the points raised in the reply statement of the respondent. What is prohibited is only setting up of an entirely new case. We are of the view that in the case on hand it cannot be said that an entirely new case had been sought to be made out by the applicants by way of rejoinder. They have only expanded the pleadings in the OA and also have answered the points raised by the respondents in the reply statement. Apart from this fact, we also find some of the issues have been raised in the O.As. themselves filed in other cases. For example, in O.As. 153/99 and 294/99, one of the grounds taken is "the selection has been unfair and hence is violative of the fundamental rights of the applicants under Article 14 and 16 of the Constitution as well as the procedures prescribed in the Railway Establishment Manual." Further in O.A. 103/99 the grounds taken, inter alia, are "(a) The applicant submits that the entire selection process becomes illegal as the interview was not conducted properly.
(b) The applicant submits that his mother Mrs. Pushpam served the Railway for about 33 years. Hence the applicant should have been given preference being the son of a retired Railway employee.
(c) The applicant submits that the selection process was done for some extraneous considerations. This is evident from the fact that there are about 55 persons selected between Roll Nos. 10305 and 10397 whereas between 30241 and 40016 only 2 persons have been declared to be selected. This clearly proves that the selection was done arbitrarily.
(d) The applicant submits that the procedure adopted by the respondents is illegal and will amount to violation of Articles 14 and 16 of the Constitution of India."
Also in O.A. 260 among other grounds, one is selection is violative of the procedure prescribed in the IREM. The ground relating to violation of Articles 14 and 16 of the Constitution has also been taken. In the circumstances, we do not accept the contention of the learned counsel for the respondents that the rejoinder filed in O.A. 93/99 cannot be taken into account. It is in the interest of all concerned that all the contentions raised therein on the selection are considered so that the matter may be given a quietus especially in view of the fact that it is the third time the matter has come up before this Tribunal.
43. Dealing with the contention of the counsel for the applicant in O.A. 93 that the reservation percentages have not been properly followed, the counsel for the respondents explained in detail how the reservation percentages as laid down by the Govt. of India and the Railway Board and upheld by the courts have been properly and correctly followed. He referred to the decision of the Supreme Court in Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217, and said there are two types of reservations which may for the sake of convenience be referred to as 'vertical reservations' and 'horizontal reservations' and that the reservations in favour of the Scheduled Castes, Scheduled Tribes and other Backward Classes under Article 16(4) of the Constitution may be called vertical reservations whereas reservations in favour of Physically Handicapped and ex-servicemen under Article 16(1) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations in what may be called inter-locking reservations. The persons selected against the quota for physically handicapped and Ex-servicemen will be placed in the appropriate category i.e. if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the per centage of reservations under Article 16(4) in favour of backward class of citizens remains and should remain the same. He referred to the OM of the Govt. of India, Ministry of Personnel, Public Grievances & Pension, Dept. of Personnel and Training in F.No. 36035/16/94 Estt (SCT) dt. 20.9.1994 and in F. No. 36012/58/92 Estt (SCT) dated 1.12.1994 respectively on the subject of reservations for PH persons and Ex-servicemen in Group C and D posts and the Railway Board's endorsement circulars No. 9-E (SCT) dt. 2.12.1994 and 13.1.1995. We are satisfied that the respondents have followed these instructions properly and there is no deviation with regard to the method of working the percentages for reservation in the case of SC/STs and ex-servicemen. There is however, difficulty in saying the samething with regard to the reservation quota for PH candidates.
44. Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 provides for reservation of posts in the matter of employment for persons with disability. The reservation is not less than 3% of the vacancies. Of course there is a provision for exemption from Section 33 but it can be given only by a notification by the appropriate Government subject to conditions. Section 36 provides for carry forward of unfilled vacancies. It also provides for inter change of quota among the categories of persons with disabilities viz.
(i) Blindness or Low vision
(ii) Hearing Impairment
(iii) Locomotor disability or Cerebral Palsy As per Govt. of India, Dept. of Personnel and Administrative Reforms O.M. No. 39016/ 6/77-Estt.(SCT) dated 4.11.1977, the President has decided that the prescribed per centage of reservation for PH candidates is 3 consisting of 1% each for the Blind, the Deaf and Orthopaedically handicapped. If sufficient number of persons are not found to the extent of 1 % reservation in any of these categories or if the nature of vacancies in an office is such that a given category of persons cannot be employed, the short fall has to be adjusted against the remaining and the total reservation should not fall below 3%. This is reitreated in the O.M. dated 30.12.1980 of the same department. In the present case, we find that only 2% reservation had been complied with. We therefore, find that to this extent of short fall there is non-compliance.
45. Questions 2 and 3 are inter-linked in this case. It is therefore, convenient to deal with them together. The percentage of reservation for SCs and STs in the case of direct requirement conducted on AH India Basis are 15% and 7 1/2% respectively. In the case of direct recruitment to certain lower categories of Group C level and entire Group D level staff done on local/regional basis', the percentages vary from State to State and they are fixed in proportion to the population of SCs. and STs in the respective States and Union Territories. The Railway Board has communicated periodically the percentages of reservation and model rosters based on those percentages to different Railway Zones/Production Units for use during recruitment on local/regional basis. Such letters had been issued on 3.2.74, 19.10.78, 31.5.88, 27.5.94, and again during August, 1997. Integral Coach Factory itself circulated Procedure Order No. 11 in the file No. PB/RL/93/XIII dated 26.11.97 specifying the percentages of reservation for SCs/STs. and OBCs. and post based roster for direct recruitment categories on regional basis as per Railway Board's letter. The percentages of reservation for SC/ST in ICF on local/regional basis are 19 and 1 respectively and for OBC it is 27.
46. The percentages of reservation specified for SC/ST in recruitment on local/ regional basis have got a special significance. Under Article 341 and 342 of the Constitution of India, the President is empowered with respect to any State or Union Territory and in the case of a State in consultation with the Governor thereof, to specify by public notification the castes, races, or tribes or parts of or groups within the castes or races or tribes which shall for the purpose of the Constitution be deemed to be Scheduled Caste or Scheduled Tribe as the case may be in relation to that State or Union Territory as the case may be. Parliament alone is competent to add to or delete from the list notified. The Presidential notifications have been issued and are in force. A caste or a group categorised and notified as SC/ST in one State may or may not be SC/ST in another State even a contiguous or neighbouring ones. Varying percentages of reservation for SC/ST candidates in the case of local/regional recruitment have been fixed for each State in proportion to the population of these communities in the total population of that State and therefore, the special percentages and the area of recruitment are inextricably dependent on each other or in other words they are inseparable. To construe otherwise would result in anomalies. Suppose a community which is not notified as SC/ST in one State called the first State is notified as SC/ST in another State called the second State. If a member of that community from the second State participates in a local selection in a Central Government department in the first state and gets selected against a reserved post, then to that extent he though not being a SC/ST in the first State erodes the number of reserved posts available to communities notified as SC/ST in the first State. This militates against the rationale of linking the reservation percentages to the proportion of SC/ST population in the total population of the State for the purpose of local/regional recruitment. When recruitment is made on All India basis such anomaly will not arise because even if a particular community or group is unable to compete on SC/ST status from one State, another community of the same status in another Stale can participate in the selection and the over all percentages of 15 and 7 1/2 reserved for these communities will be satisfied. That is not the position in the case of a local recruitment.
47. The procedure for recruitment of Group D posts of Khalasis etc. is governed by paragraph 179 of the IREM. The recruitment unit in this case is the ICF. As per Clause (vi) of the said paragraph the employment notice indicating the total number of vacancies, the number of vacancies reserved for SC/ST, scale of pay, qualifications prescribed, etc. as well as the last date for receipt of applications should be prepared in due time and issued to the employment exchanges within the recruitment unit and to the recognised associations of Scheduled Castes and Scheduled Tribes so that adequate publicity is given with a view to attract maximum number of local residents. Copies of these notices are to be exhibited on notice boards outside the Railway Offices etc. situated in the area of recruitment. Further as per Clause (viii) the candidates have to be nominated by the employment exchange concerned or registered with theemployment exchanges. Then only they will be eligible for consideration. As per sub Clause (b) of Clause (viii), for the convenience of serving Railway employees, applications from their sons and immediate dependents may be received by the Railway Administration direct. However, they should be got registered in an employment exchange by deputing a welfare inspector if necessary for this purpose and will thereafter be eligible for consideration along with others. It is not necessary that their names are to be nominated by the Employment Exchange. If, however, the employment exchange does not register their applications, such applications will be considered without registering their names in the employment exchange. Applicants belonging to SC and ST even though they are not sons and immediate dependents of the serving Railway employees may also be given the benefit of getting their applications registered at the employment exchange through a Welfare Inspector.
48. It may be noted that paragraph 5 of the notification 1/95 dated 7.9.1995 inviting applications for the post of Khalasis stipulated that the applications of candidates other than the wards of employees, SCs/STs Act Apprentices who had completed their Apprenticeship training in ICF should be got sponsored by the employment exchanges. It was further stated in paragraph 8 that applications received direct from candidates other than those mentioned in paragraph 5 will be summarily rejected.
49. Applicant in O.A. No. 202/99 filed a Writ Petition No. 14122/95 in the Madras High Court praying that the facility of depositing applications directly instead of getting sponsored by Employment Exchanges be extended to all candidates. The High Court by its judgment dated 26.3.1996 permitted 28 members of the Petitioner federation whose names were given to the Court to file their applications to the respective employment exchanges within one week from 26.3.1996 and directed the employment exchanges concerned to sponsor the names of those applicants within one week thereafter to the Sr. Personnel Officer, ICF for consideration along with other applicants for recruitment on merits and in accordance with law. The writ petition was accordingly disposed of. A perusal of the counter affidavit of respondents 1 and 2 who were Union of India and Senior Personnel Officer, ICF, Madras and the counter affidavit of third respondent who was The Director, Employment and Training, Chennai, shows that the Senior Personnel Officer, ICF, while adhering to the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and rules made thereunder and orders issued by the Government of India notified 330 vacancies of Group D Khalasis to the employment exchanges in Chennai only and requested them to sponsor candidates on/or before 6.10.1995 for selection. Some clarification was called for by The Director, Employment and Training. The Senior Personnel Officer replied to the points. Additional time was given upto 14.10.1995. Finally the employment exchanges in Chennai and adjoining Kancheepuram and Tiruvallur sponsored 6640 candidates. Details are as follows :
S. No. Name of Employment Exchange No. of candidates sponsored
1.
District Employment Office, Nandanam, Chennai 1655
2. District Employment Office, Adyar, Chennai 1398
3. District Employment Office, Kancheepuram 820
4. District Employment Office, (PH), Anna Nagar 350
5. District Employment Office, Anna Nagar, Chennai 1590
6. District Employment Office, Tiruvallur 827 Total 6640
50. It is clear from this exercise that the recruiting authority notified the vacancies only to the employment exchanges in Chennai and the neighbouring two districts obviously keeping in view the fact that the recruitment was confined to local area. The call notice did not even extend to the rest of the State. In our view there cannot be dichotomy with reference to area between the two ways in which applications have been called for and considered, viz. by sponsorship by employment exchanges and by receipt of applications directly by the recruiting authority. Notification dated 7.9.95 was not properly issued.
51. Looking to the reasons for and the basis of fixing modified per centages of reservations of 19 and 1 as distinct from the All India percentages of 15 & 7 1/2 respectively for SC & ST candidates and the action of the recruiting authority in notifying the vacancies to the Employment Exchanges in Chennai, Kancheepuram aTiruvallur only for sponsoring candidates and Clause (vi) of paragraph 179 of the IREM, we have no hesitation in holding that the recruitment ought to be confined to local/regional area only and it cannot extend to all over India.
52. We proceed to examine questions 4, 5, 6 & 7.
The learned counsel for the applicant in O.A. 153 and 294 argued that short listing of the candidates for the purpose of the interview ought to have been done by the respondents and the respondents were not justified in not giving preference to the applicants who were technically qualified in the matter of selection and further she also questioned the spread of marks under the four heads and pointed out that looking to the very large number of candidates for interview and the limited time available, not more than two or three minutes would have been spent on each candidate and in that short duration it would not have been possible even for an experienced and discerning mind to evaluate properly and award appropriate marks under the heads 'ability to do the job' and Personality/address which two heads carried 80% of the total interview marks. Her point was that by itself it led to unfair selection.
53. Paragraph 179 of IREM dealing with recruitment of Group D in Railway service does not categorically lay down that written test cum interview or interview alone should be the method for selecting the candidates. In this case, the respondents have chosen to do the selection, only by the process of oral interview. This procedure cannot be found faultwith. The important question is whether the respondents should have taken recourse to shortlisting of candidates called for interview. The authority could have done some preliminary screening and reduced the number. Even if it has not done so, it will not be fatal to the process of selection. This question had been raised earlier in O.A. No. 543/98 and the matter stands concluded by the order in that case. This question was dealt with in great detail in paragraphs 9 to 12 of the order dated 17.9.1998 in that case and the Tribunal did not consider it appropriate "to quash the selection process which is going on presently and which is to come to an end shortly."
54. Several cases were cited bearing on the allocation of marks for interview. It was held in the case of Union of India and Anr. v. M Chandrasekaran and Ors. (1998) SCC (L&S) 916=1998(3) SLJ 21 (SC), that due regard must be4 had to the posts to which the candidates are to be promoted as well as to the nature of duties they have to discharge or perform and so viewing the marks given in the interview cannot be considered as disproportionately high or that the spread of marks was done arbitrarily. It was a case of promotion to the post of Assistant Purchase Officer from the post of Purchase Assistant 'B'. The promotion was based on a written test followed by an interview and assessment of the Confidential Reports. The marks prescribed for the written test, interview and Confidential Report were 50, 30 and 20 respectively.
When the selections were questioned before the Ernakulam Bench of C.A.T., it held relying upon the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, that allocation of 30 marks for interview was totally unreasonable and arbitrary. The Supreme Court held on appeal that the Tribunal went wrong in applying the ratio in Ashok Kumar Yadav's case.
55. In the case of N. Abubacker and Ors. v. UOI and Ors. (1994) 28 ATC 821, the Ernakulam Bench of the C.A.T. had before it the question whether weightage for interview was excessive and arbitrary. In that case allocation of 70% of the marks was for viva voce test while remaining 30% was for record of Service and seniority. While dealing with the question the Tribunal referred to several cases of the Supreme Court on this question. It is useful and convenient to extract the summary from the order in that case :
"The percentage of marks allotted for interview, by itself would not be determinative of this issue, the Supreme Court of India had to deal with the reasonableness of allocation of marks for viva-voce, on several occasions. In Chitralekha v. State of Mysore, the Court held that the method of viva voce was not an objectionable one. On the contrary an interview held by competent professionals was considered reasonable. In Peria Karuppan v. State of Tamil Nadu, the Court held that the method of selection by interview was not illegal provided the allocation of marks was within reasonable parameters. However, in Janki Prasad v. State of Jammu & Kashmir, the Constitution Bench sounded a note of warning. It was observed that interview should not be the sole' basis of selection. The faith, which the Court set in objectivity of interviewers, was perhaps waning. In Ajay Hasia v. Khalid Majib, the Court held that the prescription of 33 1/3% of marks for viva voce was arbitrary. The same view was expressed in Nishi Maghu v. State of Jammu & Kashmir. In Miss Arti Sapru v. State of J&K, the Court voided a selection where 30% of the marks were allocated for the interview. Still later in Ashok Kumar Yadav v. State Haryana, a bench of four Judges reviewed the case law, noticed recommendation of an Expert Committee viz., Kothari Commission, and held that an outer limit must be prescribed for interview, at 25% for ex-officers and 12.2% for general candidates.
Some other cases take a seemingly different but substantially similar view having regard to the special facts. In Lila Dhar v. State of Rajasthan, the Court upheld a selection where 25% of the marks were allotted for interview. Again in National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyanaraman, the Court found a process of selection valid where 50% of the total marks were allocated for viva voce. In Anzar Ahmed v. State of Bihar a selection wherein 50% of marks were allocated for interview was upheld. Still later in Andhra Pradesh Financial Corporation v. CM. Raj, the Court pointed out that allocation of high percentage of marks for viva voce would not taint the process for the reasons, and the question of prescribing an upper limit for interview marks would arise, generally in a case where a written examination and an interview are visualized."
In this background the Tribunal examined whether allocation of 70% marks for the viva voce is arbitrary. The Tribunal held in paragraph 8 of its order as follows:
"In this background we have examined whether allocation of 70% of marks for the viva voce is arbitrary, we think it is. 15% of the total marks is allocated for ascertaining professional competency on the basis of records of service. At the same time, 70% of the total marks are allocated for assessing professional ability, leadership, address, academic qualifications etc. There is no precise allocation among these various elements. There could be instances of a person getting outstanding entries in his service records. The most he may get in the assessment is 15% under this head. He may perhaps get low marks in the interview for the same. At once, a candidate who may get 5% or even less for professional ability on the basis of records may get 40% of the marks under the head professional ability in the viva voce that would be an instance where the subjective element overrides the objective element in assessment. We consider that the method adopted is unreasonable and arbitrary."
56. Thus it emerges that while testing reasonableness of marks allocated for interview, it has to be seen basically whether it is a case of promotion or initial recruitment, secondly whether the recruitment process consisted of written test and interview or oral interview alone. In this case the respondents have chosen to do the recruitment selection exclusively by the process of oral interview. In the circumstances the entire marks can be allocated for interview alone and for nothing else. The question of high or low does not arise in such a case. However, the question of spread of marks under different heads is different.
57. The Selection committees were required to award marks under the following heads:
1.
Personality/address 40 marks
2. Ability to do the job 40 marks
3. Technical/academic qualification 10 marks
4. Sports, etc. 10 marks Total 100 marks The Committee members were given a written brief setting out norms as to how marks are to be awarded under the third and fourth heads. No norms were laid down for the first two heads which together carried a maximum of 80% marks. It appears there were allegations/ complaints of irregular award of marks etc. even before the selections came to be impugned in these applications. The General Manager, ICF constituted a committee to investigate the allegations made regarding irregularities and mal-practices in the recruitment for filling up 917 vacancies. The Committee was required to probe into the following specific complains:
1. Allegations of tampering of marks and alterations done on the marksheets.
2. Wrong assessment by the selection committee on the first day of selection, with 79 candidates selected by one committee and none by the other two committees. From Sl. Nos. 10,301 to 10,450,79 candidates had been selected while from Sl. Nos. 32000 to 42000 only 5 candidates were selected.
3. More than one candidate was selected from one family.
58. The committee confined its study to the 917 empanelled candidates only and scrutinised their marksheets. The committee found there were 2016 cases of alteration/ overwriting of marks by the committee members themselves. Some changes were attested by the concerned committee member while some were not. The Committee felt that the corrections made by the members were bona fide changes made at the time of the interview. And there was no scope for any tampering of marks by any outside agencies in view of the foolproof system followed in the matter of sealing the covers containing the marksheets everyday and the check done to ensure integrity of data entry and the accuracy in the compilation. Regarding the allegation of wrong assessment, the committee did find a substantial number of cases of deviation from the norms. These deviations in marking under columns 3 and 4, even though were, for just a few marks, had a substantial impact on the panel. These deviations mostly occurred in the first few recruitments (78% of the deviations were traced to 22/6/98 and 23.6.98) and were not confined to just a few members of the committee.
59. While the Committee found no evidence of malpractice it felt that there were significant inconsistencies in the marking pattern between different selection committees and on different days. On certain days it found that most of the candidates appearing before certain committees secured very high marks and the lowest marks given by such committees were higher than the highest marks given by other committees. Indeed as observed by the Committee it is highly improbable that all candidates appearing before one committee could be of a much higher caliber than the candidates appearing before other committees. For instance, on 22.6.98 while 26% of those who appeared before committee 1 were technically qualified, and the figure was 27% for committee 2 and no candidate was selected by these two committees, it was in fact only 22% for committee 3, where almost 80% of the candidates were empanelled. The skewed distribution of the number of empanelled candidates selection-committee-wise and day-wise indicate total lack of uniformity in assessment between different committees and as the composition of the committees changed from day to day in the course of long recruitment spanning over 75 days, these inconsistencies had a considerable impact on the final outcome. The committee observed :
"It is clear from our study that the inconsistencies in the marking pattern are due to the absence of guidelines for 80% of marks under the heads person-
ality/address and "ability to do job" (40 marks each). Each committee has been tacitly following its own internal yeardsticks for awarding marks under these two heads. As a result there is no level playing field for candidates with those appearing before certain committees getting an undue advantage due to comparatively liberal marking."
"Considering the fact that 150 candidates had to be interviewed on an average by each committee on each day (for eight hours a day on an average), the time for each candidate works out to slightly more than three minutes which is too negligible a time for objective evaluation and ensuring compliance of norms under the head of "ability to do job". Since no norms were available, the committees have been following their own yardstick by awarding varying marks even where candidates could not life the prescribed weights. This Committee felt that a normative range of marks could be laid down to assess physical fitness by differentiating candidates by the extent to which the weight was lifted. It is felt that anomalies are unavoidable where 80% of the marks are left to subjective assessment of the committee members where the recruitment involves such a large number of candidates and such a large number of committee members."
60. When these are the findings/observations by the Committee of senior officials on the basis of study of marking pattern of the 917 empanelled candidates only, it has to be left to one's imagination as to what would be the outcome if the marking pattern in the case of the rest of the candidates who attended the interview is also analysed. The conclusion is inevitable that the spread of marks as done and the marking system under the first two heads carrying 80% marks without any norms or guidelines distorted the selections. It did not at all ensure uniformity to a reasonable and possible extent and also fairness.
61. The next question is regarding the preference, if any, to be given to technically qualified candidates. Initially when the recruitmentprocess was advertised there were only 330 vacancies. Subsequently the number increased to 917. The respondents in one of the reply statements have stated that the 917 vacancies fell under the following categories.
Khalasis 423 Vendors 86 Mali 69 Peons 112 Gangmen 33 Sanitary Cleaners 194 Total 917 It is incomprehensible that necessarily for all these categories technically qualified/trade tested candidates ought to be selected. We have to bear in mind the fact that minimum educational qualification prescribed was 8th standard. True there is no ceiling. Further those who are appointed as Khalasis or Gangmen have got opportunities to get promoted to skilled categories in different trades subject to suitability, but the same thing cannot be said about the peons and Sanitary Cleaners. For those posts requirement of technical quaiification has no meaning. Further in fact also it is seen that out of 917 candidates selected, 604 are said to possess technical qualifications such as diploma or apprenticeship course completion, I.T.I Certificate, etc. only 313 are not technically qualified. Even among 313 not technically qualified, only 69 were candidates below 10th standard. Educational qualifications alone are not enough to determine the merit. It is demonstrated relative fitness to meet a particular assignment which is required to be looked into and evaluated. The employer has to see so many other factors. In these circumstances, we cannot endorse the contention that necessarily all the selected candidates should possess technical qualifications. Suffice to say that to the extent possible they have been given preference within the parameters.
62. The next question is whether nonjoinder of all the 914 selected candidates is fatal to the applications. The roll numbers of the candidates selected were published on 30.1.1999 in the Indian Express and Daily Thanthi. No names were published. It is indeed impractical in this case to expect the applicants to implead all the selected candidates on the basis of their roll numbers. At the same time it is not as if law on this point is given a gobye. A few of the candidates have on their own got impleaded.
63. In O.A.93/99, originally there were 5 respondents. Subsequently MA 223 dated 27.3.99 was filed by G.L. Sreenivasan, J. Murali Kannan and G.B. Prakash Kumar for getting impleaded as party respondents 6, 7 & 8. And MA 241 dated 9.4.99 was filed by a selected candidate O.K. Manohara Varma for getting impleaded as party respondent 9. Both the MAs were allowed.
64. Again both in O.A. 153 and 294/99, at the time of filing the application itself, two selected candidates were impleaded as private respondents. Subsequently, in O.A. 153/99, 2 M. As. M.A. 225 and M. A. 226/99 were filed by one R. Parthasarathy, a selected candidate for permission to get impleaded and for vacation of interim order of the Tribunal on status quo maintenance.
65. There is also an original application O.A. 367/99 by one of the selected candidates. That has been considered along with other applications challenging the validity of Selections made. Further in this case no appointments have been made. Mere announcement of the roll numbers of the candidates selected will not result in accrual of legal right to hold the post unless and until actual appointment is made. It has been held that "By being selected by a Board not duly constituted the candidates do not acquire a legal right to be appointed lo the post. "Dr. Pankaj Sharma and Dr. C.S.Aggarwal v. Union of India (1987) 4 ATC 902. "Unless a person who is selected is actually appointed to the post for which selection is made he will not get a legal right to hold the post "Bidhur Kumar Bhagat v UOI (1991) 18 ATC 132=1989(4) SLJ 498 (Patna) (SN). Above all in this case, the whole selection process has been challenged. In such a case the selected candidates may be proper parties but not necessary parties. It has been held in G.P. Mathur and Others v. State of Rajasthan, (1987) 5 ATC 299=1988(1) SLJ 1 (PB-ND) (CAT), that when challenge is primarily against irregular selection process, candidates included in the list may be proper but not necessary parties. In the circumstances we hold that the applications under consideration do not suffer from the infirmity of nonjoinder of parties.
66. On the questions 9 & 10, we are in total agreement with the findings of the Committee set up by the General Manager, I.C.F. Looking to the procedure evolved for selection, and the composition of the selection committees, and after perusing the reply affidavits of the respondents including, in particular the reply affidavits of respondents, 4 & 5 in O.A. No. 93/99, we are of the view that there is no evidence for concluding that there was mala fide selection. Basically the oral test serves as a good selection tool for employment. However, the difficulty of developing a valid and reliable test, the difficulty of securing a reviewable record of the oral test conducted and the general suspicion that the oral test can be manipulated though influence give rise to quite often unfounded allegations and complaints. We do not consider it necessary to go into this real in view of our findings on questions 2,3 and 6. As regards question No. 10 there is no rule or norm of "one family, job for one member only" in the ICF. The Committee appointed by the General Manager, ICF, (bund that in all cases of brothers and sisters who have been empanelled, the selection was based on merit and they were all technically qualified candidates and hence there was no irregularity in their finding a place in the panel. We are in agreement with these findings.
67. There are one or two miscellaneous points. The learned counsel Mr. Peter Francis raised a contention that the minimum qualification to recruitment being 8th standard, Graduates should not have been selected. A few among the selected candidates are stated to be graduates. Selection of a few graduates cannot be faulted on the ground that they are qualified more than the minimum standard prescribed. The contention is devoid of merit. Another contention raised by the counsel Mr. Peter Francis was that the wards and dependents of retiring employees should have been given preference in the selection. This contention again is devoid of merit. Posts in ICF are not hereditary. We cannot subscribe to the view that only wards and dependents of serving employees or employees who are about 10 retire or retired employees should be selected or for that matter should be given any special preference in the matter of selection. They have to compete with other candidates subject to merit. It cannot be denied that the object of any process of selection is to secure the best and the most suitable persons for the job within the provisions of law and rules. The learned counsel Mr. Isaiah raised a question that the employment exchanges were not notified about the increase in vacancies. No doubt the first notification regarding 330 vacancies said that the vacancies were subject to variation but to say that addition of 587 vacancies is a normal variation is not correct. We are of the view that the additional vacancies should have been notified.
68. Mr. V. Prakash, learned counsel for one of the selected candidates argued that unsuccessful candidates have no locus standi to impugn the legality of the selection. This contention is not acceptable on the facts and circumstances of this case. In this case the recruiting authority has committed a glaring irregularity in the procedure and also in the conduct of the selection. Even with regard to the first notification dated 7.9.95, we have held that it was not properly issued. Secondly, the first notification was only for 330 vacancies, whereas the actual recruitment was done for 917 vacancies. There was no fresh notification for the additional 587 vacancies. While following the special percentages of reservation as applicable to local/regional area of the recruitment unit which in this case in ICF, the field of selection extended beyond the recruitment area and was not confined to local/regional area of the recruitment unit viz. the ICF zone. Further the spread of marks for the viva voice under the four heads led to distortions in the selection process. This has been held by a committee of officials appointed by the General Manager ICF. We are in full agreement with that. In these circumstances, we draw support from the decision of the Supreme Court in Raj Kumar and Ors. v.Shakti Raj and Ors., (1997) SCC (L&S) 1029, Wherein the Supreme Court has held that unsuccessful candidates are not barred from questioning the selection. It is also relevant to refer to the decision of the Supreme Court in Mohapatra and Co. and Anr. v. State of Orissa and Anr., (1984)4 SCC 103. That case related to selection of books by the State Government. The appellant in that case wasapublisher, who filed writ petition in the High Court of Orissa, challenging the list of books selected by the State Government for the years 1980, 1981 and 1982. The Writ Petitions were dismissed. One of the grounds for dismissal was that for the year 1980-81, the first appellant, a partnership firm had not submitted any book pursuant to the advertisment issued by the State Government. For the year 1981-82, it had submitted twenty four books out of which one was selected. For the year 1982-83, it had submitted twenty nine books out of which six were selected. Having submitted books for selection and after being either partially successful in getting some books selected or having failed in getting books submitted by it selected, the first appellant could not impugn the selection of books on the grounds of bias on the part of the members of the Assessment Subcommittee. The second appellant had not submitted any book for selection pursuant to the advertisement in this behalf issued by the State Government for any of the years in question and, therefore, was not a "person aggrieved" by any of the selections made for those years.
69. On appeal, the Supreme Court has held as under :
"7. We are unable to follow the reasoning behind the first ground upon which the High Court rested its decision. It appears to us paradoxical that when a person has submitted books for selection, it is to be said that he has waived the objection which he had to the constitution of the sub-Committee and that when a person had not submitted any books for selection it is to be said that he is not a "person aggrieved". To say so would be contradiction in terms. If the reasoning of the High Court were correct, the sequitur would be that nobody would be able to challenge any selection of books, for a person who challenges the selection must either be one who has submitted a book or books for selection or one who has not submitted any book for selection. In our opinion, the High Court was not right in the view it took. Merely by submitting books for selection of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books. Similarly, merely because a person does not submit any book for selection, it cannot be said that he is not a person aggrieved......"
70. Admittedly, the cases on hand related to recruitment for the lowest level of post in the Government hierarchy. The candidates for these posts cannot be expected to be fully conversant with all the rules and regulations bearing on the recruitment and especially about the validity of the employment notification and also the spread of marks for the interview and the selection procedure before hand. In these circumstances those who participated in the selection, but did not get selected, cannot be estopped from challenging the selection, if they were so advised later, within a reasonable time.
71. For the reasons discussed in paras 45 to 51 we have held that the recruitment ought to have been confined to local/regional area linked to the recruitment unit. Para 179 of IREM enjoins upon the recruiting authority to notify vacancies to employment exchanges within the recruitment unit and permits him to receive applications directly from certain categories of candidates. In this case, while the authority notified the vacancies to the employment exchanges in Chennai, Kancheepuram and Tiruvallur, he did not specify any area or field in respect of direct receipt of applications. In fact, the employment notification dated 7.9.95 did not contain any stipulation on this point. There is thus a basic infirmity in that notification. We have, therefore to quash the notification dated 7.9.95. We do so, accordingly. Consequently, the selections made and announced pursuant to the said notification will have to be set aside.
72. For the reasons discussed in paragraphs 57 to 60 we find that the spread of marks under the four heads for the viva voce test and the total absence of any norms or guidelines for awarding marks under the first two heads which carried 80% of the marks led to wide disparities in the awarding of marks to the candidates by the selection committees and distorted the selection. The committee of officials found instances of wrong assessment even under the heads 3 and 4 leading to incorrect selection. In the original notification dated 7.9.95 only 330 vacancies were advertised and the employment exchanges concerned were accordingly notified. Though the vacancies vastly increased from 330 to 917, no fresh notification was issued for the additional 587 vacancies, nor the employment exchanges were notified about these additional 587 vacancies, for sponsoring candidates. The selection of candidates for the additional 587 vacancies which was done without any fresh notification is bad in the eye of law. Also the statutory quota of 3% reservation for physically handicapped candidates has not been complied with. For these special reasons also the selections have to be quashed irrespective of the validity of the notification dated 7.9.95.
73. Before parting with the matter, we would like to lay down some guidelines for the recruitment in question.
(a) The respondents, if they are so advised may issue a fresh notification or even notifications for different categories of Group 'D' posts. While doing so, inter alia, the respondents may have to clearly define the field of selection linked to local/regional area relevant to the recruitment unit. While calling for names from the employment exchanges or giving publicity as per Clause (vi) of Rule 179 of IREM, or entertaining applications directly from the candidates as per Sub-clause (b) of Clause (viii) of para 179 of the IREM, the same local/ regional area of the recruitment unit has to be adhered to and dichotomous approach has to be avoided.
(b) If the number of applications received is very large disproportionate to the number of vacancies to be filled, say 10 times or more than the vacancies, then some sort of screening test may be conducted to reduce the number of candidates for the oral interview to manageable proportions, in the alternative, the selection process itself may consist of a simple written test and viva voce test with suitable allocation of marks for both.
(c) The whole selection process of a viva voce test after a screening test or consisting of a written test and a viva voce test should be transparent so as to eliminate unnecessary suspicion and allegations. It may be necessary to stipulate clearly the heads under which the marks are to be awarded in the viva voce test and lay down clearly the norms for awarding marks under each head so as to ensure uniformity in the marking pattern to the extent possible and avoid wide disparities in the assessment reducing the scope for subjectivity and ensuring more scope for objectivity.
74. The applications are ordered accordingly. No costs.