Jharkhand High Court
Nakul Prasad vs Union Of India on 29 August, 2018
Author: D.N.Patel
Bench: D.N. Patel, Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 368 of 2015
Nakul Prasad, Son of Balkeshwar Prasad, Resident of Quarter No. B/23,
Airport Colony, Hinoo, P.O. Hinoo, P.S. Doranda, District Ranchi,
Jharkhand
... ... Appellant
Versus
1. Union of India, through the Secretary, Ministry of Civil Aviation,
Government of India, New Delhi
2. Airport Authority of India Limited, through its Chairman, Rajiv Gandhi
Bhawan, Safdarjung Airport, P.O. & P.S.-Safdurjung, New Delhi
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant: M/s Saurabh Shekhar
For the Respondents: Mr. S.K. Verma (For R-2)
Vidya Sunder
J.C. to A.S.G.I.
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th
15/Dated 29 August, 2018
Per D.N. Patel, J.
1. This Letters Patent Appeal has been preferred by the Original Petitioner, whose writ petition, being W.P.(S) No. 1809 of 2013 was dismissed by the learned Single Judge vide judgment and order dated 14th May, 2015, whereby the prayer of this appellant (Original Petitioner) for seeking a writ of Mandamus upon respondents to select this appellant on the post of Manager (Finance) was not accepted by the learned Single Judge and hence, Original Petitioner has preferred the present Letters Patent Appeal.
2. Factual Matrix Respondent Airport Authority of India has issued Public Advertisement No. 2/2007 inviting applications for the post of Manager (Finance). Total vacancies for this post were 19 and the tabular chart below gives the details regarding number of vacancies for different categories as given in the said advertisement.
General OBC SC ST PH-1
(Other (Scheduled (Scheduled (with
Backward Caste) Tribe) hearing
Class) disability
i.e.
(partially
deaf)
10 5 3 1 1
This appellant (Original Petitioner) belongs to Other Backward Class category and as per the advertisement, there were five vacancies for this category. Written examination was conducted on 3rd August, 2008.
-2-Marks obtained by this appellant (Original Petitioner) was 56 out of 100 and his rank after the written Test was 47.
This appellant qualified for interview and had appeared in the interview on 10th November, 2009. This appellant had secured 56 marks and hence, he was called for interview. Total marks for interview was 25, out of which 14 marks were obtained by the appellant (Original Petitioner). Thus, this appellant has secured 70 (56 + 14) marks out of 125 (100 +
25), which is 56%.
It further appears from the facts of the case that minimum cut off percentage fixed for OBC category was 60% (out of total marks of written test as well as that of interview) as the petitioner secured only 56% of the total marks, he was not selected for the post of Manager (Finance) and hence, W.P.(S) No. 1809 of 2013 was preferred by this appellant, which was dismissed by the learned Single Judge vide judgment and Order dated 14th May, 2015 and hence, this Letters Patent Appeal has been preferred by the Original Petitioner.
3. Arguments canvassed by counsel for the appellant.
Counsel appearing for the appellant submitted that the cut off percentage fixed for the respondents ought to be lesser for the Other Backward Class (OBC) candidates. For General and OBC there cannot be the same cut off percentage.
This appellant has also submitted that cut off marks should also be reduced because passing standard in the main examination was fixed at 52 percentage. This aspect of the matter was not appreciated by the learned Single Judge while dismissing the writ petition.
4. Arguments canvassed by counsels for the respondents.
Counsels appearing for the respondents submitted that to fix the cut off percentage is a policy decision of the respondents and this Court will be slow in interfering in the policy decision of the respondents while exercising power under Article 226 of the Constitution of India. It is further submitted by the counsel appearing for the respondents that the yardstick of passing standard has been evenly applied to all the candidates. There cannot be a specific yard stick for this appellant (Original Petitioner). Even otherwise also, advertisement is of the year 2007 and all the candidates have joined the services and more than a decade have passed.
-3-These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition and hence, this Letters Patent Appeal may not be entertained by this Court. REASONS
5. Having heard counsels appearing for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal, mainly for the following facts and reasons and judicial pronouncements:-
(I) The appellant applied for the post of Manager (Finance) in Airport Authority of India in pursuance of Public Advertisement No. 2/2007. He belongs to Other Backward Class category (OBC) and appeared in the written test conducted by the respondents and secured 56 out of 100 marks.
(II) As he qualified for interview, he appeared in the viva-voce test on 10th November, 2009 and secured 14 out of 25 marks. Thus, total marks secured by this appellant was 70 out of 125, which is equal to 56%.
(IV) Looking to the Annexure 7 to be read with Annexure 6 to the memo of this Letters Patent Appeal, the respondents have prescribed that candidates of General Category as well as Other Backward Classes shall secure minimum 60 % marks, which has not been secured by this appellant, hence, he was not selected. (V) Much has been argued out by the counsel for the appellant that minimum cut off marks of 60% for Other Backward Class candidates should be reduced by the High Court while exercising powers under Article 226 of the Constitution of India.
We are not accepting this contention mainly for the reason that
(a) What should be the passing standard or cut off percentage for selection of candidates for the post of Manager (Finance) in Airport Authority of India is a policy decision of the respondents.
(b) High Court cannot replace an existing policy with a better one.
(c ) Passing standard can never be altered by the High Court while exercising power under writ -4- jurisdiction because the same depends upon the requirement of the employer.
(d) As passing standard cannot be altered as per the whims and caprice of the applicant, who has applied for the post in question. Otherwise, there will be a fluctuating passing standard for different candidates.
(e) Passing standard depends upon the duties to be performed. Passing standard depends upon the employer also. We are not here to alter passing standard prescribed by Airports Authority of India, especially when we are exercising power under writ jurisdiction.
(VI) It has been held by Hon'ble the Supreme Court that Policy decision cannot be interfered with by the High Court. High Court cannot replace a better policy in place of existing policy. (VII) It has been held by the Hon'ble Supreme Court in the case of Regional Manager, A.P.S.R.T.C. v. Sampoornamma, reported in 1999 SCC (L & S) 1162, at Para no. 4 as under:
"4. It clearly appears that the High Court has failed to appreciate the real nature of compassionate appointments and the Scheme framed in that behalf. If for valid reasons, the general policy decision has been taken not to make any fresh appointment then it would not be proper for the Court to direct filling up of the post merely because there is a vacancy. The Court's sympathy and consequential orders/directions should not be such as would create an impediment in smooth and efficient running of the administration. Orders and directions for consideration of appointments on compassionate grounds should be made where it is possible and permissible for the employer to employ the dependant of his earlier employee. Once it is found that the decision of the employer not to make any fresh appointment is bona fide it would not be proper for the Court to question the same and in spite of the decision to that effect, direct him to consider appointing the person on compassionate grounds. Merely because a vacancy existed it was not proper for the High Court to direct the appellant Corporation to consider the respondent and give her appointment ignoring the ban for any fresh appointment. We, therefore, allow this appeal and quash the impugned order passed by the High Court."
(Emphasis supplied) (VIII) It has been held by the Hon'ble Supreme Court in the case of State of U.P. v. Johri Mal, reported in (2004) 4 SCC 714, at Para no. 28 as under:
-5-"28. The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi- judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court. The limited scope of judicial review, succinctly put, is:
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.
(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.
(v) The courts cannot be called upon to undertake the government duties and functions. The court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn v. State of Illinois.)"
(Emphasis supplied) (IX) It has been held by the Hon'ble Supreme Court in the case of Indian Airlines Officers' Assn. v. Indian Airlines Ltd., reported in (2007)10 SCC 684, at Para no. 45 as under:
"45. Our attention was repeatedly drawn to the counter-affidavit filed by Indian Airlines before Justice Ramamoorthy where it was said that the two cadres were not comparable. However, one must bear in mind that at that time the only question was as to whether the erstwhile Vayudoot employees could be allowed to compete for the higher posts in Indian Airlines when there was a complete compartmentalisation between the employees of Vayudoot and Indian Airlines in the sense that the Indian Airlines employees could not be transferred to Vayudoot and vice versa and further the SHOD employees were to be maintained as a separate and distinct department from Indian Airlines. The defence raised in that case, at that time, could not be said to be a be all and end all of the matter so as to hold that the two cadres even at the later point of time were wholly incomparable so that they could not be integrated at all. We have already clarified above that the matter of integration or as the case may be, fusion of these employees was a matter of policy which had become necessary in order to contain the grievances of substantial number of Vayudoot employees. Any such policy decision, unless the said decision was arbitrary, unreasonable or capricious, could not have been challenged by the employees as rightly held by the Division Bench of the Delhi High Court, which judgment is impugned before us. There is a specific observation in S.L. Dutta case, more -6- particularly in para 18 thereof to the following effect: (SCC pp. 506f-507a) "The court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy are of a highly technical or scientific nature. A consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers in the Navigation Stream of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a change which would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. These are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience. In the present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote [Respondent 1] was taken, the policy had already been changed. There was no question of mala fides. Moreover, the change in policy in this case cannot be said to be unwarranted by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, ..."
These observations would make us slow in interfering with the policy decision. Even the managerial duties in Indian Airlines as well as Vayudoot would involve the technical questions as to the nature of duties, training required and desirable qualifications. Again we cannot ignore the lengthy deliberations in various meetings to arrive at a proper decision taken by the responsible persons like senior officers of Ministry of Civil Aviation, senior officers including CMD of Indian Airlines as also the ex-Director of SHOD and the Director (HRD) of Indian Airlines. In the wake of these personalities spending their valuable time to frame the policy regarding the fusion, we would be slow to interfere with such policy."
(Emphasis supplied)
6. In view of the aforesaid facts, especially looking to Annexure 7 and 6 to the memo of the Letters Patent Appeal, minimum percentage required for selection on the post of Manager (Finance) was 60 for OBC category candidates and as this appellant has secured only 56% of the marks in aggregate, no error has been committed by the respondents in not selecting this appellant for the post in question
7. As a cumulative effect of the facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge while deciding W.P.(S) No. 1809 of 2013 vide order dated 14th May, 2015 and we see no reason to take any other view than what has been taken by the learned Single Judge.
-7-8. There is no substance in this Letters Patent Appeal, which is dismissed with a cost of Rs. 15,000/- to be deposited before the Jharkhand State Legal Services Authority within a period of 12 weeks from today.
This amount shall be utilised for the programme 'Access to Justice'.
9. Let a copy of this order be sent to the Member Secretary, Jharkhand State Legal Services Authority, Nyay Sadan, Doranda, Ranchi.
(D.N.Patel, J.) (Amitav K. Gupta, J.) s.m.