Central Administrative Tribunal - Delhi
Kuldeep Yadav vs Union Of India & Ors. Through on 27 January, 2012
Central Administrative Tribunal Principal Bench O.A. No. 752/2011 Orders reserved on: 24.01.2012 Orders pronounced on:27.01.2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Kuldeep Yadav S/o Shri Kanwar Singh Yadav, R/o Vill. & P.O. Palra, Tehsil Beri, Distt. Jhajjar, Haryana. Applicant (By Advocate : Shri M.K. Bhardwaj) Versus Union of India & Ors. through : 1. The Secretary, Ministry of Tourism, Shastri Bhawan, Govt. of India, New Delhi. 2. The Principal, Institute of Hotel Management, Catering and Nutrition, Pusha, New Delhi. .. Respondents (By Advocate Shri Vikas Kumar for Shri Vaibhav Asthana for R-2, None for R-1) O R D E R Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicant filed OA No.4081/2010, whereby the grievance raised by the applicant was to the effect that no result has been declared for the post of Assistant Lecturer-cum-Instructor under the OBC category to which category applicant belongs, although appointments letters have been issued to all other categories of candidates. This Tribunal disposed of the said OA at the admission stage itself vide order dated 06.12.2010, directing the respondents to inform the applicant as to why applicant has not been selected or given appointment letter for the post of Assistant Lecturer-cum-Instructor, as claimed by him. Pursuant to the directions given by this Tribunal the respondents have informed the applicant vide impugned order dated 12.01.2011(Annexure A-1), as his performance in the written test and interview for the post of Assistant Lecturer-cum-Instructor was not upto the mark and as such he was not found suitable by the Interview Committee for appointment as Assistant Lecturer. It has been further stated that the applicant has secured 09 out of 100 marks in the written test and 13 out of 50 marks in the interview, thus total 22 marks out of 150 marks.
2. At this stage, few relevant facts may be noticed. The respondents have issued an advertisement for 12 posts of Assistant Lecturer-cum-Instructor, out of which 06 were meant for unreserved/general category, 03 for OBC categories, 02 for scheduled castes (SC) and 01 for scheduled tribes (ST). Applicant, who belongs to OBC category also submitted his application for appointment to the said post. Since the applicant was not selected, as he was not found suitable, he has filed this OA, thereby challenging the order dated 12.01.2011 (Annexure A-1). Challenge has been made on the ground that applicant has secured more than 60% marks in the written test that is why he was called for interview and it is highly improbable that applicant has secured only 09 marks in the written test and 13 marks in the interview, as communicated vide the impugned order (Annexure A-1). The challenge has also been made on the ground that respondents have acted in violation of Articles 14 and 16 of the Constitution of India, as they have given differential treatment to the OBC category vis-`-vis SC and general category and also that respondents have acted discriminatory in not giving him the benefit of relaxation in the wake of non-availability of sufficient number of candidates belonging to the OBC category on the basis of general standard.
3. Notice of this Application was given to the respondents, who have filed their reply-affidavit, wherein the facts as stated above, have not been disputed. Respondents have stated that minimum qualifying marks for selection of the candidates for the post of Assistant Lecturer was fixed at 40% of the combined marks obtained in written test as well as in interview. Accordingly, 06 candidates were selected on the basis of the written examination cum interview with a 40% of minimum qualifying marks and the names of such candidates have been mentioned in para 3 of the reply-affidavit. As can be seen from para-3 of reply-affidavit 05 persons belonging to general category candidates have obtained more than 40% marks whereas 06th candidate, who belongs to SC category, has also obtained more than 40% marks. Thus, out of 12 posts appointments have been given to 06 candidates only who have obtained more than 40% marks in written as well as interview. None of the candidate from OBC category has been given appointment. Respondents have further stated in the reply that out of 132 only 86 candidates were found eligible to appear for the written test but only 41 candidates actually appeared for the written test. Accordingly, 36 candidates were required to be short-listed out of 41 candidates who appeared for the written test for the 12 posts of Assistant Lecturer. According to the respondents, 18 candidates of general category for 06 seats, all the 04 candidates of OBC category who appeared for the written test for the 03 seats and, 06 candidates for 02 seats of SC were called for interview. No ST candidate appeared for the written test. Accordingly, the Institute was handicapped in calling any ST candidate for the interview. It is further stated that the Institute was handicapped to call only 04 candidates of OBC category since only 04 had appeared in the written test. According to the respondents the criteria fixed for calling candidates for interview for the post of Assistant Lecturer was in the ratio of 1:3, i.e., 03 candidates were required to be called for one vacancy. Since applicant has obtained only 14.66% of marks on the basis of the combined marks of written test and interview and could not obtain minimum qualifying marks of 40%, thus, according to the respondents applicant was rightly not selected.
4. Applicant has not filed any rejoinder.
5. We have heard the learned counsel of the parties and perused the material on record. We are of the view that the applicant has not made out any case for grant of relief. Admittedly, respondents have fixed 40% minimum qualifying marks for selection of the candidates for the post of Assistant Lecturer-cum-Instructor. Applicant has only obtained 14.66% marks, i.e., far below than the minimum qualifying marks of 40% fixed on the basis of the combined marks of written test and interview. Applicant belongs to OBC category. There were 03 posts reserved for this category and none of the candidate has been selected in this category. As already stated above, out of 12 posts of Assistant Lecturer-cum-Instructor meant for different categories only 06 candidates have obtained minimum 40% qualifying marks and 06 posts have remained unfilled. In case the respondents have decided that candidates who have obtained minimum 40% marks in written test as well as interview should be selected for the post of Assistant Lecturer-cum-Instructor, it is not permissible for us to interfere in such a matter. Further, it is also not permissible for us to give direction to the respondents to lower down the cut off marks and give appointment to the applicant, which will not be conducive to general merits prescribed by the respondents for the purpose of selection to the post of Assistant Lecturer. We do not subscribe to the view that a person who has obtained only 14.66% marks should be appointed to the post of Assistant Lecturer-cum-Instructor, thereby compromising the merit. Be that as it may, we are of the view that we see no infirmity in the action of the respondents whereby applicant has not been given appointment to the post of Assistant Lecturer-cum-Instructor. Respondents have given reasons why the applicant was called for interview, even though he has secured 09% marks in the written examination. Respondents have categorically stated in the reply-affidavit that the criteria fixed for calling the candidates for interview for the post of Assistant Lecturer-cum-Instructor was in the ratio of 1:3, i.e, 03 candidates were required to be called for one vacancy. It was under these circumstances that the applicant who has only secured 09% marks in the written examination was called for interview, as there were only 04 candidates belonging to OBC category against the 03 vacancies and in ordinary course 12 candidates were required to be called for interview. Thus, the vague contention raised by the applicant that since he was called for interview, pre-supposes that he has obtained 60% marks in the written examination, is wholly misconceived and deserves outright rejection. At this stage, we wish to refer to the decision of the Apex Court in the case of Union of India v. S. Vinodh Kumar & Others, (2007) 2 SCC (L&S) 792. That was a case where selection was made by the Railway authorities for 480 vacancies, out of which 240 were meant for general category, 115 for OBC, 72 for SC, 53 for ST. The cut off marks provided for general category was 71, 56 for OBC, 20 for SC and 20 for ST. Out of 480 vacancies, 426 were filled up and remaining 54 posts which remained unfilled belong to SC (12) and ST (42). 39 unsuccessful candidates filed an application before the Central Administrative Tribunal, which was disposed of directing the Railway Administration to consider the question in regard to lowering of cut-off marks. The competent authority of the Railways, however, took a decision that it would not be conducive to general merit of the candidates if the cut-off marks were further lowered, whereafter another application was filed before the Tribunal. By an order dated 02.05.2001, the said application was dismissed by the Tribunal, inter alia, opining that the appellants could not be directed to lower down the cut-off marks. The matter went to the High Court and the High Court set aside the judgment of the Tribunal and directed that the aforesaid vacancies should be filled in from OC and OBC candidates and in future the vacancies of the quota meant for OC and OBC category should be reduced and the same could be allotted to SC and ST categories. The matter was carried to the Apex Court and the Apex Court set aside the judgment of the High Court and held that appellants had the requisite jurisdiction to fix the cut off marks. The necessary corollary thereof would be that it could not be directed to lower the same. It is trite that it is for the employer or the expert body to determine the cut-off marks. The court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the court, in this behalf, is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question.
6. The ratio, as laid down by the Apex Court in the case of S. Vinodh Kumar (supra) is squarely applicable in the facts and circumstances of the case. Accordingly the OA is found bereft of merit, which is accordingly dismissed, with no order as to costs.
(Manjulika Gautam) (M.L. Chauhan)
Member (A) Member (J)
San.