Central Administrative Tribunal - Chandigarh
Dalbir Singh vs Employees State Insurance Corporation ... on 28 August, 2024
1
(OA No. 060/15/2022 &
9 connected OAs)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Reserved on: 06.08.2024
Pronounced on: 28.08.2024
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
(1) O.A. No.060/15/2022
Jagjit Kaur, age 30 years D/o Sh. Rajinder Singh, R/o # B-
33/376, New Janakpuri, Salam Tabri, Ludhiana-141008 (Group-
C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(2) O.A. No.060/34/2022
Santosh verma, aged about 40 years W/o Sh. Dhananjay
Kumar R/o # 154, Shiv Mandir Gali, Post Office Vasundhara
Enclave, Kondli, Delhi-110096. (Group-C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
Versus
2
(OA No. 060/15/2022 &
9 connected OAs)
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana
141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(3) O.A. No.060/814/2022
Maninderjit Singh, age 40 years S/o Late S. Kulwinder Singh,
R/o # 55, Street No. 2 Tera Nagar, Dhandra Road, Ludhiana-
141006. (Group-C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(4) O.A. No.060/1089/2022
Vikas Bhardwaj, age 36 years S/o Sh. M.L. Bhardwaj, R/o #
6849, Street No. 1, Navin Nagar, Jassian Road, Badi Haibowal
Kalan, Ludhiana, presently resident of # 6519/2/1, Tandan
Nagar, Street No. 1, Jassian Road, New Jawala Singh Chowk,
Badi Haibowal Kalan, Ludhiana-141001. (Group-C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
3
(OA No. 060/15/2022 &
9 connected OAs)
Versus
3. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
4. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(5) O.A. No.060/1092/2022
Harpreet Kaur, age 36 years W/o Sh. Javleenjot Singh, R/o #
3757/30, Kundan Nagar, Near Model Town, Ludhiana-141002.
(Group-C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(6) O.A. No.060/1128/2022
Dharam Chand, age 36 years S/o Sh. Bhagwat Swaroop, R/o #
79, ESIC Colony, Sector-16, Kheri Kalan, Faridabad, Presently
R/o # 1169P, Sector-64, Ballabgarh, Faridabad-121002 (Group
C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
4
(OA No. 060/15/2022 &
9 connected OAs)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(7) O.A. No.060/135/2023
Balbinder Kumar, son of Sh. Satpal, aged 37 years, R/o H. No.
217 Nayi Colony, Pathankot, permanent resident of Village
Deoli, Tehsil Bishnah, Jammu (J&K) (Group D).
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Lane No. 2, SIDCO Industrial
Complex, Bari Brahmana, Jammu (J&K)-181133.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(8) O.A. No.060/136/2023
Shehnaaz Bibi, aged 35 years D/o Majid Ahmad, wife of Sh.
Imran Ahmad, R/o Old Basti, Jammu Road, Pathankot,
permanent resident of Near Water Tank/Tubewell, Bathindi,
Jammu (J&K)-181152. (Group D)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
5
(OA No. 060/15/2022 &
9 connected OAs)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Lane No. 2, SIDCO Industrial
Complex, Bari Brahmana, Jammu (J&K)-181133.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(9) O.A. No.060/419/2023
Lakhwinder Singh, aged 37 years S/o Ranjit Singh, R/o 332,
New Abadi, Akalgarh, Ludhiana (Punjab)-141104 (Group-C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
(10) O.A. No.060/424/2023
Dalbir Singh, aged 53 years S/o Late Sh. Mohan Singh, R/o
Village Leel POakhowal, Tehsil Raikot, District Ludhiana
(Punjab)-141108 (Group-C)
...... Applicant
(By Advocate : Sh. Barjesh Mittal)
6
(OA No. 060/15/2022 &
9 connected OAs)
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002 through
its Director General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Bharat Nagar, Ludhiana 141001.
.......Respondents
(By Advocate : Sh. K.K. Thakur alongwith Sh. Jaskirat)
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. All the above ten Original Applications are taken up together for disposal, as a common question of law and facts are involved in all these cases. However, the facts are being extracted from O.A.No.060/15/2022 (Jagjit Kaur Vs. ESIC) and the said case has been treated as a lead case.
2. The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, assailing the action of the respondents in introducing/fixing of minimum qualifying marks/qualifying standards in the written examination much beyond the declaration of the result of the said 7 (OA No. 060/15/2022 & 9 connected OAs) written examination. Thus, the applicant prayed for the following relief(s):-
(i) That the action of the respondents in introduction of category wise minimum qualifying marks/qualifying standards with respect to advertisement dated 07.12.2012 (Annexure A-1) be quashed/set aside.
(ii) For issuance of appropriate directions in the nature of mandamus to respondents to extend the benefit of order/judgement dated 22.11.2021 (A-8) in OA No. 060/568/2017 to applicant as well and to shortlist/select her on the basis of marks obtained by her in the combined merit list for the post of Nursing Orderly and to issue appointment letter to her as per her merit without taking into consideration the criteria of minimum qualifying marks/benchmark in the interest of justice.
3. The brief matrix of facts is that the applicant belongs to General Category and is working on contractual basis in respondent No. 2 ESIC Model Hospital, Ludhiana. The respondent No. 2 issued an advertisement for recruitment of Nursing/Paramedical Staff for Punjab State in ESIC Model Hospital, Bharat Nagar, Ludhiana in December 2012 (Annexure A-1). The last date for submission of online application was 31.12.2012. The applicant being fully eligible and fulfilling all the requisite conditions, submitted the online application form for the relevant post and also uploaded all the requisite documents w.r.t. the educational qualification and experience certificates 8 (OA No. 060/15/2022 & 9 connected OAs) etc. duly attested alongwith the online application form.
4. It is further submitted that after closing of the last date of submission of applications on 31.12.2012, the respondents did not proceed with the said selection process for a period of about three years. Thereafter, vide communication dated 08.03.2016 (Annexure A-
2), office of respondent No. 1 issued a notice regarding holding of online examination for the posts notified in the advertisement released in the year 2012 and scheduled said online examination on 19.03.2016. It was mentioned in the said notice Annexure A-2 that the scheme of examination as advertised earlier has been modified as stipulated in the said notice and under the heading of mode of selection, "the candidates qualifying in online examination shall be considered for final selection on the basis of their performance in the online examination". The applicant downloaded her admit card for online examination (Annexure A-3).
5. After conducting the online written examination for various posts in various ESIC Hospital, all over the 9 (OA No. 060/15/2022 & 9 connected OAs) country on 19.03.2016, the common region wise combined merit list of candidates who appeared in the online examination was uploaded on the respondent ESIC website on 21.06.2016. The combined merit list of all the candidates who applied and appeared for the post of Nursing Orderly is annexed as Annexure A-4.
6. The applicant who belonged to General Category, had applied for the post of Nursing Orderly and as per the said combined merit list for the said post, she scored a total score of 31.25 against 13 post of Nursing Orderly in General Category. Subsequently, Respondent No. 2 issued a communication dated 08.02.2017 (Annexure A-5) and uploaded the same on ESIC Website showing the list of selected and shortlisted candidates for verification of documents for different nursing and paramedical post for ESIC Hospital, Ludhiana on the basis of their performance in the written online examination held on 19.03.2016.
7. The applicant was shocked on not finding her name in the said communication Annexure A-5 despite the fact that the applicant had qualified the said exam in her 10 (OA No. 060/15/2022 & 9 connected OAs) respective category of Nursing Orderly. On inquiring from the office of Respondent No. 2, the applicant learnt that the office of Respondent No., 1 has issued OM dated 02.01.2017 (Annexure -6) approving the following category for minimum qualifying marks to be followed in the written examination:-
Category Minimum Qualifying
Marks/Bench Mark
UR 45%
OBC 40%
SC, ST & Ex- 35%
Servicemen
PWD-Person with 30%
Disabilities
Thus, the applicants who had been shortlisted and called for verification of their documents as they had not secured the minimum qualifying marks in their respective category viz. 45%, 40%, 35% and 30%, were not found qualified.
8. The applicant submits that she belongs to lower strata of the society and despite being 30 years of age, is unmarried as she has to support her old and ailing parents. Moreover, this is the last chance in her service career for her regular appointment in the Government Organization and in spite of having the 11 (OA No. 060/15/2022 & 9 connected OAs) requisite qualification and experience for the relevant post and having qualified the online written examination, she has been declared unqualified by the respondents by making alteration in the selection criteria and introduction of minimum qualifying marks for being shortlisted and considered for interview/verification of documents.
9. The applicant relied on the following case law to agitate his point of view further:-
(i) Hon'ble Supreme Court judgement in case titled Maharashtra State Road Transport Corporation and Ors. Vs. Rajendra Bhimro Mandve and Ors. reported as 2001(10)SCC 51.
(ii) Hon'ble Supreme Court Judgement in case titled Hemani Malhotra Verus High Court of Delhi reported as 2008(2) SCT 736.
(iii) Full Bench Judgement of Hon'ble Supreme Court in case titled K. Manjusree Versus State of AP and another.
(iv) Hon'ble Punjab and Haryana High Court judgement in case titled Subeg Singh and others Versus State of Punjab and Ors. reported as 2015(1) SCT 48.
(v) Hon'ble Punjab and Haryana High Court judgement in case titled Sanjeev Kumar and Ors.
Vs. State of Haryana and Ors. reported as 2013(2) SCT 78.
10. Thus, the applicant submits that the action of respondents in fixing the minimum qualifying marks/Bench mark and changing the criteria after the selection process had already commenced and final 12 (OA No. 060/15/2022 & 9 connected OAs) result has been declared, is unsustainable and untenable in the eyes of law and is liable to be quashed in the interest of justice. Hence this OA.
11. The respondents filed a written statement contradicting the averments made by the applicant in the Original Application.
12. It is stated by the respondents that the applicant had applied against vacancy position for Para Medical Posts, advertised by the Hospital in the year 2012 and the exam for the same was conducted on 19.03.2016. It is stated that well before the commencement of examination for this recruitment, a corrigendum was issued by office specifying that ESIC reserved the right to fix minimum qualifying marks. The same was published in Dainik Bhaskar, Hindustan Times, The Tribune and Jagbani on 20.08.2015 and was also uploaded on ESI website on ww.esic.nic.in with console No. 287/2015 dated 20.08.2015 (Annexures R-1, R-2, R-3, R-4 and R-5 respectively). The applicant has not challenged these decisions.
13. It is further stated that the applicant was declared not qualified in communication dated 08.02.2017 13 (OA No. 060/15/2022 & 9 connected OAs) (Annexure A-5) which is not even challenged by the applicant and as such once basic decision is not under challenge, she is not entitled to any relief.
14. Moreover, the applicant has not challenged the advertisement and selection process or criteria, without participating in the selection, which is sufficient enough to prove that they are not having any valid objection and no cause of action has arisen to them to file the present Original Application.
15. The respondents have cited comprehensive case law to support their point of view. Some of the cases relied upon by the respondents are as under:-
(i) 2012(4) SCT 328 titled Simarjit Singh Tiwana Vs. State of Punjab
(ii) 2002(2) Vol 2 SCT 1093 titled Chander Parkash Tiwari Vs. Shankuntla Shukla
(iii) (2009) 5 SCC 515 titled .A. Nagamani Vs. India Airlines & Ors.
(iv) (2008) 4 SCC 515 titled Dhanjay Malik & Ors.
Vs. Stae of Uttaranchal & Ors.
(v) AIR 2010 SC 3714 titled Ramesh Kumar Vs. High Court of Delhi.
16. The applicant has filed the rejoinder rebutting the pleas made in the written statement and reiterating the facts as stated in the Original Application. 14
(OA No. 060/15/2022 & 9 connected OAs)
17. We have heard the learned counsels for the parties and have carefully gone through the pleadings on record.
18. We notice that the applicant herself admitted that well before the commencement of the Examination, the respondents published a corrigendum dated 20.08.2015 in different newspapers mentioning therein that ESIC shall have discretion to fix minimum qualifying marks in the written examination. The relevant portion of the said corrigendum (Annexure R-5) is reproduced as below:-
"(ii) MODE OF SELECTION The candidates qualifying in Written Examination (Out of total 125 marks) shall be considered for final selection on the basis of their performance in Written Examination (Out of total 125 marks).
ESIC shall have the discretion to fix minimum Qualifying Marks in the Written Examination (Out of total 125 marks). The recruitment of Paramedical & Nursing Staff notified in the above mentioned advertisement dated 06-12-2012 stands modified.
Other conditions/instruction of the advertisement shall remain unchanged."
19. So, there should be no ground for raising the objection about changing the criteria for minimum qualifying marks. Thus, the criteria can be changed before actual conduct of the test. This condition 15 (OA No. 060/15/2022 & 9 connected OAs) stands equal for all the aspiring candidates and cannot be considered prejudicial. Moreover, the applicant has not challenged this Corrigendum in her OA.
20. The decisions relied upon by the applicant do not help her at all. In so far as claim for benefit of judgement dated 22.11.2021 of this Tribunal in OA No. 060/568/2017 is concerned, it is seen that the OA was allowed by setting aside the impugned orders on the ground that the rules of game could not be changed mid-way in as much as process of selection started in 2012 whereas minimum selection criteria was introduced in 2017. The same could not be applied retrospectively. We have also gone through the case law cited by the applicant and find that the reliance on the same is misplaced.
21. We agree with the respondents that short-listing done by fixing the Bench mark to recruit best candidates on rational and reasonable basis is permissible under the law laid down in M.P. Public Service Commission Vs. Navnit Kumar Potdar & Anr., (1994) 6 CC 293.
22. The respondents have rightly placed their reliance on Municipal Corporation of Delhi Vs. Surender Singh etc. C.A. No. 5588 of 2010 decided on 01.08.2019 (Annexure R-7) wherein it has been held that any undue 16 (OA No. 060/15/2022 & 9 connected OAs) sympathy shown to the petitioners for their appointment despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the non- selected candidates but lower than the cut-off percentage and had accepted the legal position with regard to the employer's right in selection process.
23. We also notice that the selection is being made in a fair, judicious and transparent manner and thus, the selection process cannot be faulted with.
24. It is clear that the applicant failed to make a mark and as such she is stopped from filing this Original Application.
25. In view of the foregoing discussion, we do not find any merit in the claim made by the applicant and accordingly, dismiss the present Original Application.
26. There shall be no order so as to costs.
27. A copy of this order be placed in all the connected files.
(RASHMI SAXENA SAHNI) (RAMESH SINGH THAKUR)
Member (A) Member (J)
ND*