Central Administrative Tribunal - Chandigarh
Bhagwant Singh vs Union Of India Through Secretary on 10 February, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.449/PB/2013 Pronounced on: 10.02.2017 Reserved on: 02.02.2017 Coram: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
1. Bhagwant Singh, S/o Sh. Grjant Singh, R/o Q. No. 115/9, MES Colony, Near Bibi Wala Chowk, Military Station, Bathinda.
2. Uttam Kumar, S/o Sh. Prem Parkash, R/o Q. NO. 290/1, Basant Bagh, Military Station, Bathinda.
3. Ajit Kumar Singh, S/o Sh. Ram Kirpal R/o H. No. 286/3, MES Colony, Basant Bagh, Military Station, Bathinda.
4. Surinder Singh, S/o Sh. Angrej Singh, R/o Q. NO. 254/3, MES Colony, Basant Bagh, Military Station, Bathinda.
5. Sandeep Kumar s/o Sh. Maheshwar Prashad, R/o H. No.44/3, Basant Bagh, MES Colony, Military Station, Bathinda.
6. Sanjay Sen s/o Sh. Khoken Sen, R/o H. No. 352/4, MES Colony, Basant Bagh, Bathinda Cantt.
7. Jitender Kumar, S/o Sh. Rajman Prashad, R/o H. No. 102/5, MES Colony, Near Bibi Wala Chownk, Military Station, Bathinda.
8. Salil Kumar S/o Sh. Pati Ram, R/o Q. No. 104/5, MES Colony, Near Bibi Wala Chownk, Military Station, Bathinda.
9. Jaspal Singh s/o sh. Gurbachan Singh, R/o H. No. 16500, St. No. 5/2F Baba Faridnagar, Distt. Bathinda.
10. Pankaj Kumar, S/o Sh. Ved Parkash, R/o 107/7, MES Colony, Near Bibi Wala Chownk, Military Station, Bathinda.
11. Rohit Kumar S/o Madan Ram, R/o H. No. 111/2, MES Colony, Near Bibi Wala Chownk, Military Station, Bathinda.
12. Vikas Bhardwaj, s/o Sh. Ashok Kumar Sharma, R/o H. No. 49/4, Basant Bagh Colony, Near Gurudwara, Bathinda Cantt.
.Applicants Argued by: Mr. Lakhinder Bir Singh, Advocate Versus
1. Union of India through Secretary, Ministry of Defence, New Delhi.
2. The Engineer in Chief, Ministry of Defence, Army HQ, New Delhi.
3. The Chief Engineer, Western Command, Chandimandir, Distt. Panchkula.
4. The Chief Engineer, Bathinda Zone, Bathinda.
5. Commander Works Engineer, Bathinda.
..Respondents Argued by: Mr. Sanjay Goyal, Advocate Order BY HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
1. The challenge in the instant Original Application (O.A.), preferred by applicant Bhagwant Singh and Others, is to the impugned final result (Annexure A-8), of selected candidates, for the post of Mate (Semi Skilled) (for brevity, Mate (SS), declared by the respondents.
2. The matrix of the facts and material, culminating into the commencement, and relevant for disposal of the present O.A., as claimed by the applicants, and exposited from the record, is that the Chief Engineer, Western Command, Chandimandir (Respondent No. 3), invited applications for filling up various vacancies under different categories of industrial persons, by means of advertisement dated 31.12.2011. In pursuance thereof, the applicants, claiming themselves to be eligible, applied for the post of Mate (SS). They were stated to have cleared the written test successfully, as per result, declared by the respondents. They were called for interview, as per interview letters (Annexures A-7 colly). 3. The case set up by the applicant, in brief, insofar relevant is, that although in view of letter dated 21.03.2012 (Annexure A-5), the respondents were bound to declare the final result of the interview, by 30.11.2012, which was finally declared/published in the newspaper only in the last week of March, 2013, published in the newspaper (Annexure A-8). As per the result, the applicants were not selected, and it further revealed that though the recruitment was for 75 persons, but finally only 51 candidates were selected. The result was totally silent about the merit of selected candidates vis-a-vis the applicants. They approached the Commander Works Engineer (Respondent No. 5), but he refused to divulge the details of merit, in the written test and interview, of the candidates, which necessitated them to file an application dated 02.04.2013 (Annexure A-9), to seek the relevant information. In order to frustrate the claim of the applicants, the Respondent No. 5 was stated to have hurriedly issued the appointment letters on 06.04.2013, to the selected candidates.
4. Levelling a variety of allegations and narrating the sequence of events, in details, in all, the applicants claimed that the impugned result (Annexure A-8) is totally illegal, arbitrary, and violative of Article 14 of the Constitution of India.
5. Aggrieved thereby, the applicants have preferred the instant O.A., challenging the impugned result (Annexure A-8), on the following grounds:-
i) That the final selection is to be made on the basis of marks secured in written test as well as in interview. However, the result Annexure A-8 is totally silent about the total marks secured by the selected candidates in written test as well as interview. This illegality was pointed out by the applicants to the respondent No. 5 and had requested for the supply of list indicating the total marks obtained by the candidates in written test and interview. However, respondent no. 5 refused to divulge the information which led to the rise of suspicion in the mind of the applicants that final result has been tampered in order to select the candidates of their own choice.
ii) That the suspicion of the applicants further get a support from the fact that as per schedule fixed already, the final result and appointment letters had to be issued by 30.11.2012 as is clear from perusal of Annexure A-5. But the respondent no. 5 did not declare the final result till March 2013 and the applicants suspect that after the interview, manipulation was done by the respondent no. 5 to adjust the candidates of his own choice. Otherwise there was no apparent reason for not declaring the result within the scheduled time when the written test and the interview took place as per schedule.
iii) That the applicant no. 1 had sought information under RTI Act regarding the merit lists of written examination and interview and qualification of selected candidates and marks allocated in the interview for qualification. But no such information was supplied to the applicants though the same was very much available in the office of respondent no. 5 and rather respondent no. 5 hurriedly issued appointment letters to the selected candidates.
iv) That even the final selection list (Annexure A-8) does not disclose as to which candidates belong to General category and which candidates belong to reserve category.
v) That as stated above, the applicants have reasonable apprehension that final result has been tampered with in order to adjust the candidates of their own choice. The apprehension of the applicants is based on the fact that even highly qualified candidates have not been selected as in the case of applicant no. 1 who has obtained the degree of B. Tech in Ist Division and yet have not been selected.
vi) That when the vacancies were 75 as declared initially, then no explanation is forthcoming as to why the result of only 51 finally selected candidates have been declared. On the strength of the aforesaid grounds, the applicants seek to quash the impugned result (Annexure A-8), in the manner, indicated hereinabove.
6. The contesting respondents have refuted the claim of the applicants, and filed the written statement, inter-alia, pleading certain preliminary objections, of maintainability of the O.A., cause of action, and locus-standi of the applicants.
7. However, on merits, it was admitted that in response to the advertisement, the applicants applied for the post of Mate (SSK). They appeared in written examination, and were also called for interview. However, they were not selected. It was claimed that they had issued the advertisement for selection of 51 candidates, for the post of Mate (SS), published vide local newspaper (Annexure R-1), after obtaining approval from the Headquarters, Chief Engineer, Bathinda Zone vide letter dated 28.03.2013 (Annexure R-2). The whole process was stated to have been conducted in a transparent and fair manner, and no information was denied or concealed from the applicants. It was supplied to them in time. The applicants never approached the respondents, to see the details of their marks, which was available at all times.
8. The case of the respondents further proceeds that as per letter dated 09.02.2013 (Annexure R-4), the South Western Command had allowed 51 vacancies to the answering respondents. Thus, the apprehension of the applicants, that there were 75 vacancies, is totally wrong. The applications were invited, on the basis, of matriculation certificate. The candidates, with higher qualification, applied on their own. No marks were given for higher qualifications to the candidates. All the candidates were short-listed, on the basis of marks obtained in matriculation examination, as per certificates (Annexure R-3 colly). It was pleaded that Respondent No. 3 has no jurisdiction/power to direct Respondent No. 5, to declare the result, on a particular date, as per letter (Annexure A-5).
9. According to the respondents, a Board of Officers was constituted, to prepare the select panel, and issued appointment letters, to the selected candidates. The Board of officers verified the names, addresses, roll nos. and merit of all the candidates, listed in select panel, and also checked distribution of the vacancies, to different offices of Garrison Engineer. In all, the respondents claimed that the selection was made, after short-listing the candidates, and on merits, in pursuance of the result, published in newspaper (Annexure A-8). Virtually acknowledging the factual matrix, and reiterating the validity of the impugned result, the respondents have stoutly denied all other allegations and grounds, contained in the O.A., and prayed for its dismissal.
10. Controverting the pleadings of the reply, filed by the respondents, and reiterating the grounds, contained in the O.A., the applicants filed the replication.
11. At the very outset, it will not be out of place to mention here, that the present O.A. was initially dismissed, on the basis of decision dated 08.07.2014 in O.A. NO. 494/JK/2013 titled Deepak Kumar & Ors. Vs. Union of India and Others, vide order dated 08.07.2014 by a Co-ordinate Bench of this Tribunal.
12. However, the Civil Writ Petition No. 19650/2014, filed by the applicants, was allowed, the matter was remitted back to this Tribunal, for fresh consideration, vide order dated April 27, 2015, by the Honble High Court. The operative part of the order reads as under:-
8. While we do not express any views on the merits of the above stated claim of the petitioners and the respondents shall indeed be entitled to raise all their objections against maintainability of such claim, the fact remains that the Tribunal has not decided these issues on merits.
9. Since the impugned order does not deal with the petitioners contentions(s) in specific, we allow this writ petition; set aside the order dated 08.07.2014 passed by the Tribunal and remit the case to it for afresh adjudication in accordance with law. The petitioners as well as respondents shall be at liberty to raise their respective pleas before the Tribunal which shall be dealt with in accordance with law. This is how, we are seized of the matter.
13. Having heard learned counsel for the parties, at quite some length, having gone through the record with their valuable help, and after bestowal of thoughts over the entire matter, we are of the firm view that there is no merit, and the instant O.A. deserves to be dismissed for the reasons, mentioned herein-below.
14. Ex-facie, the main arguments of learned counsel that the Selection Committee has formulated a criteria, for short-listing the candidates, which was not prescribed in the advertisement, and since the result was not declared, as per letter (Annexure A-5), and selection was made only for 51 candidates against 75 vacancies, so the impugned result (Annexure A-8) is arbitrary and illegal, are neither tenable, nor the observations of the Honble Supreme Court in the case of The District Collector & Chairman Vizianagaram (Social Welfare Residential School Society) Vizianagaran and Another Vs. M. Tripura Sundari Devi, 1990 (4) SLR 237, are at all applicable to the facts of the present case, wherein it was observed that when an advertisement mentions a particular qualification, and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. The criteria of qualification cannot be relaxed unless it is clearly stated that the qualifications are relaxable.
15. There can hardly be any dispute with regard to the aforesaid observations, but to our mind, the same would not come to the rescue of the applicants, in the instant controversy, for more than one following reasons.
16. At the first instance, the basic qualifications, for appointment to the post in question, prescribed in the advertisement, was matriculation. The basic qualification remained the same and it was never changed by the respondents. The Selection Committee has only culled out the in-built criteria of awarding additional points to the candidates, on the basis of percentage of marks, obtained by all the candidates in the matriculation examination.
17. Secondly, as is evident from the record that although the respondents have not specifically pleaded about the formulation of criteria for short-listing the candidates, but during the course of arguments, a copy of the relevant record was made available, and it was explained that keeping in view the large number of applications for the pointed posts, the Competent Authority formulated a criteria, based on marks, obtained by the candidates in matriculation examination (basic examination), which is as under:-
Range of Marks in Xth Points given 50% & below 0 50 to 60% 2 60 to 70% 4 70 to 80% 6 80 to 90% 8 90 to 100% 10
18. In this manner, the candidates with the higher marks, were given preference by awarding and adding above mentioned points to the candidates, who secured more marks, over and above those candidates, who secured less marks in the matriculation examination. The ultimate object, sought to be achieved, was merit of the candidate. Such reasonable power is apparently inherent and in-built, vested in the Selection Committee, on the analogy of the ratio of law laid down by the Honble High Court of Punjab and Haryana in the case of Dalbir Singh Vs. State of Punjab (CWP NO. 8923 of 2012) decided on February 20, 2014, wherein it was held as under:-
Another contention raised by learned counsel for the selected candidates was that in the process of shortlisting in case there are less number of candidates coming in a reserved category, even cut-off marks should not been prescribed as the number of vacancies may remain vacant. Hon'ble the Supreme Court in S. Vinod Kumar v. Union of India, (1996) 6 SCC 580 upheld the fixation of cut-off marks by the competent authority during the course of recruitment in the interest of general merit, even if some of the vacancies remained unfilled, may be in general or reserved category. The decision of the competent authority not to lower the cut-off marks was upheld. Hence, there is no merit in this submission made by learned counsel for the selected candidates. Again, it was held by the Honble Punjab and Haryana High Court in the case of Devender Sheokand Vs. The Haryana Vidhan Sabha and Others 2013(3) SLR 337 that in the absence of statutory rules, the Selection Committee is competent to frame its own just and reasonable criteria before proceedings to select a candidate.
19. It is not a matter of dispute that the same criterion was uniformly applied to all the candidates. Even, the applicant No. 1 Bhagwant Singh got 6 additional points and the applicant No. 5 Sandeep Kumar got 4 points, while considering their merit on the basis of their marks in matriculation, as per the criteria, adopted by the respondents. Therefore, it cannot possibly be saith that the Selection Board has exceeded its jurisdiction, in any manner, in this regard, as urged on behalf of the applicant. On the contrary, the Selection Committee achieved the ultimate object of merits in selection.
20. There is yet another aspect of the matter, which can be viewed entirely from a different angle. It is now well settled principle of law that the scope of judicial review in the matter of appointment and selection is very limited. The decision of the Selection Board can only be interfered with, on the limited grounds, such as illegality or patent material irregularity in the constitution of the Selection Committee, vitiating the selection or/ a proved malafide affecting the selection process, and not otherwise. The Court cannot sit in appeal over the decision of the Selection Committee. In the instant case, the applicants have neither pleaded nor proved as to how, when and in what manner they are aggrieved by the formulation of the criteria for short-listing the candidates, which was uniformly applied to all the candidates, including the applicants, and vitiated the entire selection process, particularly when it is not the case of the applicants that they secured more marks in the written examination and interview than the last selected candidates. On the contrary, the specific case of the respondents is that a Board of senior officers of the Army was constituted to prepare the select panel. The Board verified all the relevant factors, including the marks obtained by individual candidates, in written test as well as in interview, then prepared the merit list, and issued appointment letters.
21. As regards the other feeble arguments of learned counsel for the applicants, that the respondents have not declared the result by 30.11.2012, as per letter (Annexure A-5), which was published in the month of March, 2013, that too of 51 posts out of 75, are concerned, the respondents have duly explained, in this regard, that as per letter dated 09.02.2013 (Annexure R-4), the South Western Command had allowed only 51 vacancies, so the answering respondents have declared the result of 51 vacancies. Since Respondent No. 3 has no administrative control/power, to direct Respondent No. 5 to declare the result on a particular date, therefore, the result was rightly declared in the month of March, 2013, after verifying the inter-se merit of candidates, by the duly constituted Selection Board. Otherwise also, the selection process cannot be set aside on such wishful thinking of the applicants and on such speculative grounds, particularly, when no prejudice has been shown to have been caused to them in the relevant connection. Honble Apex Court in the case of Dalpat Abasaheb Solunke, etc. etc. Vs. Dr. B.S. Mahajan etc., AIR 1990 SC 434, has held that it is not the function of the court to hear appeals over the decisions of the selection committees and to scrutinize the relative merits of the candidates. Whether the candidate is fit for a particular post or not, has to be decided by the duly constituted selection committee, which has the expertise on the subject. The court has no such expertise.
22. This is not the end of the matter. Admittedly, the applicants have duly participated in written examination, interview and recruitment process, as per the criteria of short-listing. Even, applicant no. 1 got six out of 10 marks, as per criteria ibid and applicant no. 5 got four marks, in this regard. In that eventuality, they are estopped from challenging the result thereof and they cannot possibly be heard to say, at this stage, that the criteria of short-listing the candidates, is illegal.
23. Sequelly, it was held by the Honble High Court of Delhi in the case of Moti Kumari Vs. Secretary General, Supreme Court of India in W.P. (C) No. 314/2016, decided on February15, 2016, that the result of interview test on merit cannot be successfully challenged by a candidate, who takes a chance to get selected at the said interview, and who ultimately finds himself to be unsuccessful (as in the present case). The Court cannot sit as a Court of appeal, and try to re-assess the relative merit of the concerned candidate who had been assessed as unsuccessful. It is for the interview committee to judge the relative merit of the candidates. In the instant case, as the Board of senior officers of the Army, assessed the suitability of the candidates, therefore, the assessment of merits, as made by such an expert committee, indeed, cannot be brought in challenge only on the speculative ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.
24. Thus, in view of the discussion in the preceding paragraphs, it clearly emerges that the respondents action in introducing a criterion of assigning marks based on the percentage of marks obtained by the candidates in then matriculation examination, cannot, in any way, be termed as arbitrary or discriminatory. The Selection Committee, in such cases, do enjoy the discretion of adopting a transparent and uniform criteria in order to select the most meritorious candidate(s). It is not always necessary or possible to mention each and every criterion that the selection process will follow, in the advertisement given out in the newspaper. Therefore, the touchstone for the validity, propriety or legality of evolving such criterion has to be (a) whether criterion so evolved is discriminatory? (b) Whether adoption of such criterion is likely to disproportionately affect the interest of any section of candidates?. It cannot be argued that assigning marks to the candidates, based on their performance in the matriculation examination, in an objective and uniform manner, prejudices the possibility of any candidates selection. In fact, there is no such allegation also, in this regard. In our view, adoption of such a criterion has improved the quality of selection, and setting aside such criterion purely on a technical ground, will be discounting and discrediting a fair and objective process of selection, based on transparency and uniformity and non-discrimination.
25. Therefore, thus seen from any angle, we are of the view that the Board of senior officers has rightly selected the candidates, on the basis of their merit, and we find no ground to interfere with the impugned result, in the obtaining circumstances of the case.
26. In the light of the aforesaid reasons, as there is no merit, so the instant O.A. is hereby dismissed as such. However, the parties are left to bear their own costs.
(UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J) 10.02.2017
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