Central Administrative Tribunal - Ernakulam
Natkar Eknath Narasinha vs Union Of India Represented By The ... on 13 June, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00310 of 2015
Monday this the 13th day of June, 2016
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Natkar Eknath Narasinha,
S/o. Narasinha Mariappa,
Working as Assitant Store Keeper,
Centre No. 18 Main Store Material Department,
NSRY(K), Kochi, Naval Base . . . . Applicant
(By Advocate Mr. A.T. Anil Kumar)
Versus
1. Union of India represented by the Secretary,
Defence Department, Ministry of Defence,
Secretariat, New Delhi - 110 001.
2. Integrated Headquarters,
Naval Headquarters,
Sena Bhavan, New Delhi - 110 011.
3. Commander-in-Chief,
Western Naval Command,
New Command Post Building,
Mumbai - 400 023.
4. Khusboo Samadhan Gavhane,
D/o. (late) Samadhan Gavahane,
Residing at : T 18-16, Talwar Camp,
Wood House Road, Near NT Pool,
Colaba Mumbai - 400 005.
5. Ms. Sayali Vilas Jadhav,
D/o. Vikas Jadhav,
Residing at 15, Adarsh Society,
Kirol Village, Vidhyavihar West, Mumbai - 400 086.
6. Awadhesh Kumar,
S/o. Lakshmi Kant Pal,
Residing at : 1 Shankar Shivalkar
Mapla Dongri No.3,
Mahakali Caves Road,
Andheri East Mumbai - 400 093.
7. Shrikant Daffatray Katkade,
S/o. Dattatray Katkade,
Residing at : 6/66, T-B CGS Colony,
Off LBS Marg, Ghatkopar West,
Mumbai - 400 086.
8. Ravindra Prathap Vikram Gupta,
S/o. Vikram Gupta, Room No. 20,
Sharma Chawl, Patkar Compound,
Gavdevi Road, Tulshet Pad,
Bhandeep Mumbai - 400 078.
9. Reyyi Chandrasekhar,
S/o. (late) Rayyi Nageswara Rao,
Residing at Door Number, 60-6-20/A,
Prakash Nagar, Malkapuram,
Vishakapattinam - 530 011.
10. Rachamalla V. Apparao,
S/o. Rachamalla Venkararao,
Residing at: Door No. 22-82-6,
Puja Junction, Town Kotha Road,
Vishakapattinam - 530 001. . . . . .Respondents
(By Advocates : Mr. S. Ramesh, ACGSC for R-1 to 3
Mr. G. Venugopalan for R-4 to 10)
The above application having been finally heard on 01.06.2016, the
Tribunal on 13.06.2016 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member The applicant seeks quashment of the selection process done pursuant to Annexure A1 recruitment notice for the post of Store Keeper (SK for short) and seeks a direction to conduct the written test and interview afresh.
2. Shorn of the details the case pleaded by the applicant is stated thus:
The applicant is working as Assistant Store Keeper (ASK for short) in Materials Department at NSRY, Kochi under the Southern Naval Command (SNC for short). On 23.4.2013 he was selected and promoted as ASK in SNC. By Annexure A1 notification applications were invited from the civilian employee working under SNC as well as from public for appointment of Store Keeper (SK for short) and ASK under the Western Naval Command, As per Annexure A1 it was informed that there were 23 vacancies available in the post of SK and 162 vacancies in the post of ASK. The applicant submitted his application for the post of SK. A list of eligible candidates was published in the official website of respondents. The result of written examination was published vide Annexure A4. From Annexure A4 it could be understood that the number of vacancies of the post of SK was increased to 33. The test was conducted only for 23 vacancies of Store Keeper. Increase made in the number of vacancies after the application was invited is illegal and impermissible. There was no transparency in the competitive test. The applicant was invited for interview and he appeared for the interview. Annexure A6 is the final select list for the post of SK to the Western Naval Command. The procedure followed by the respondents in the conduct of the examination and publication of final result are vitiated by malpractice and fraud and lacks transparency.
In the list of eligible candidates there were only 5076 persons which includes ex-servicemen, open quota and departmental quota persons for 23 posts of SK. After conducting the written test when the result was published, a person with roll No. 5077 was illegally included. While publishing the result for the written examination, the number of vacancies of SK was enhanced to 33. Though the applicant appeared and presented himself in a satisfactory manner in the written test and interview his name was not included. But a person having Sl.No.5077 was included. Therefore, the entire process is vitiated by malafides and thus the entire selection process with respect to the post of SK is to be set aside.
3. The official respondents 1 to 3 filed reply statement denying the plea raised by the applicant, the gist of which is stated as under:
The applicant was selected and appointed as ASK in the recruitment conducted by the Southern Naval Command. He technically resigned form the post of Unskilled Labourer from MO(MBI) w.e.f. 22.4.2013 and assumed duty at SNC as ASK. Directions were issued for conduct of recruitment of 23 SK and 162 ASK and advertisement was published in the employment news dated 15-21 Sept. 2012 (Annexure A1). It is clearly stated in Annexure A1 that the vacancies are subject to change at the discretion of the competent authority. Again it is stated at another para of Annexure A1 that the number of vacancies are subject to change at the discretion of the competent authority without intimation and without assigning any reason thereof at any time during the course of recruitment. A list of 5076 candidates was published on the official website of Indian Navy. The applicant was allotted Roll No. 4819. The written test was scheduled on 1.3.2014. It was observed that names of 4 candidates including Shri Rajkumar B Panjiyara, LDC of CABS (MBI) who applied for the post of SK were erroneously shown in the list of ASK by the hired firm. Some other discrepancies were also found in preparing the list of ASK. Those discrepancies were noticed prior to examination and those discrepancies were rectified and intimated to the Recruitment Board as per Annexure R1 letter dated 28.2.2014. Shri Rajkumar B Panjiyara mentioned above, whose name was omitted in the list of SK, but erroneously shown in the list of ASK was alloted a fresh roll No. as 5077. Shri Rajkumar B Panjiyara also got qualified in the written test for the post of Store Keeper. Therefore, the contention that there was no transparency in the recruitment procedure followed is absolutely false. The Ministry of Defence (NAY) as per letter dated 3.3.2014 directed to include 10 more posts of SK in the then current recruitment drive vide Annexure R.2. 13 vacancies of ASK were also directed to be included as can be seen from Annexure R.3. This was done as provided in Annexure A1 notification itself. The applicant along with others appeared for the interview for the post of SK on 24.7.2014. Calling for written examination or interview does not entitle any individual for selection for the applied post. The allegation that the recruitment process is vitiated by malpractice, fraud etc. is baseless The recruitment was conducted by the duly constituted Board. The candidates recommended by the Recruitment Board were considered for final selection/appointment as per merit list provided by the Board. The proceedings submitted by the Recruitment Board were forwarded to the competent authority for approval. On receipt of approval from competent authority the select list for the post of SK and ASK were declared by the HQ. The applicant never questioned about the term of Annexure A1 at any stage earlier. He also did not raise any dispute with regard to the interview held.
4. The party respondents/additional respondents also filed their reply statement refuting the averments raised by the applicant. They have reiterated and affirmed the contentions raised by the official respondents.
5. A rejoinder was subsequently filed by the applicant raising some more grounds to attack the selection process. It is stated that the competent authority has no power to change the number of vacancies. The questions used for the test are in two languages, English and Hindi. The English version is considered to be the verbatim translation of Hindi version. But the question No.33 of English Version is different from its Hindi version. Question No.30 in Hindi version and question No. 32 are one and the same. There are other discrepancies also. Annexure R1 letter was subsequently created for that purpose for getting over the illegality in the conduct of the test. Annexure A3 is the final list of eligible candidates uploaded in the official website after scrutiny ad hence there is no possibility of having any mistake. The person named in Annexure R1 must be presumed to be inducted subsequently through back door. Annexure R3 letter was also subsequently created by the respondents.
6. These allegations are denied in the additional reply statement filed by the respondents.
7. The point for consideration is whether the selection and appointment done to the post of Store Keeper pursuant to Annexure A1 notification is vitiated by malafides and whether it is liable to be quashed?
8. We have heard the learned counsel appearing for all the parties and have gone through the pleadings and documents.
9. The first ground vehemently advanced by the learned counsel for the applicant is that as per Annexure A1 employment notification, the total number of posts for Store Keeper was 23. The applicant applied for the post of Store Keeper. The selection/appointment pursuant to Annexure A1 is under challenge. The applicant cannot feign ignorance of the fact that even in Annexure A1 it is very clearly stated that the vacancies are subject to change at the discretion of the competent authority. In Page 3 of Annexure A1 at another place it was specifically mentioned in clause 9, which reads:
'Number of vacancies are subject to change at the discretion of competent authority without intimation and without assigning any reason thereof, at any time during the course of recruitment.' Hence it is a case where the applicant was aware of the fact that the competent authority is vested with the power to increase the number of vacancies. It is pointed out by the learned counsel for the respondents that Western Naval Command was invested with the power to conduct the selection for the post of SK and ASK for the whole of India. Since the actual number of vacancies could not be obtained from all the Commands including the Commands in Andaman and Nicobar Islands, originally the number of vacancies was notified as 23. It was anticipating that there may be some more vacancies in other Commands, it was specifically mentioned in the notification that the number of vacancies would be subject to change at the discretion of the competent authority without assigning any reason thereof, at any time during the course of recruitment. At no point of time the applicant questioned the two clauses mentioned above in Annexure A1 pertaining to the discretionary power of the competent authority which empowers him to change the number of vacancies at any time during the course of recruitment. Therefore, the challenge now made against the same is found to be bereft of any merit.
10. The other ground strenuously addressed by the learned counsel for the applicant is that Annexure A-3, the list of candidates, for the post of Store Keeper would show that the last Roll No. is 5076. Another person, by name Mr. Rajkumar B. Panjyara bearing No. 5077 was included in the list for the post of Store Keeper. It is specifically stated by the respondents that the name of Mr. Rajkumar B. Panjyara was mistakenly included/shown in the list of candidates for Assistant Store Keeper in stead of in the list of 'Store Keeper'. That happened to be done at the last moment. The candidate Mr. Rajkumar B. Panjyara appeared before the authority concerned and convinced that his application was for Store Keeper but he was wrongly shown as 'an applicant for Assistant Store Keeper'. When that fact was realized, immediately he was assigned the Roll No. 5077 and a handwritten 'hall ticket' was given to him. Mr. Rajkumar B. Panjyara has not been impleaded as a party respondent in this case. Be that as it may, it is a case where his name was shown even before the date of written examination.
11. Annexure R-1 the letter dated 28.02.2014 issued from the headquarters, would clearly show that Mr. Rajkumar B. Panjyara and 3 other persons were omitted to be shown in the list and so all the 4 other persons were shown to be included in the list. The letter dated 28.02.2014 would show that on scrutiny it was found that those 4 candidates were also eligible for the examination and so they were permitted to write the examination provisionally and the Recruitment Board was directed to include the names of those persons who had applied for the examination. Similar mistakes were shown in the list of Assistant Store Keepers also. There were mistakes with regard to 8 candidates as can be seen from the 2nd page of Annexure R-1. There also corrections were directed to be effected in order to enable the eligible candidates to write the examination. There is nothing to show that there was any sort of malafides in it. That was done immediately prior to the written examination which was scheduled to be conducted on 01.03.2014. Annexure R-2 is the letter dated 03.03.2014, which was sent from the headquarters to the Western Naval Command stating that the competent authority has accorded approval to include 10 posts of Store Keeper; out of which 5 were under UR, 3 under OBC and 2 under SC category. Thus 10 more vacancies were included. The contention that it was done without jurisdiction must fall to the ground, for the reasons already stated. Similar letter (Annexure R-3) was sent by the Headquarters to the Recruitment Board for inclusion of 13 vacancies of Assistant Store Keepers as well. That also was done as permitted under Annexure A-1.
12. Annexure R-6 is the application submitted by Mr. Rajkumar B. Panjyara for the post of Store Keeper. That application was submitted by him on 27.09.2012. All the particulars are seen mentioned therein. That could not be controverted by the applicant. That apart Mr. Rajkumar B. Panjyara has not been impleaded as respondent in this case. To further strengthen the case of the respondents, that originally Mr. Rajkumar B. Panjyara was issued with a letter for writing the examination for the post of Assistant Store Keeper (and not for the post of SK) Annexure R-8 also has been produced. Annexure R-8, the letter issued to Mr. Rajkumar B. Panjyara on 11.01.2014 would show that he was given the hall ticket for writing the examination for the post of Assistant Store Keeper. It was thereafter Mr. Rajkumar B. Panjyara appeared before the competent officer to rectify the mistake and to issue hall ticket to enable him to write the written examination on 01.02.2014. Therefore, there is absolutely nothing to show malafides in the conduct of the examination/selection process.
13. Annexure R-4 is the list of candidates, who were selected for interview. Admittedly, the applicant wrote the written examination and as he was found successful, he was invited for the interview also. The number of persons who were called for interview are shown in Annexure R-4.
14. It is vehemently argued by the learned counsel for the applicant that there was discrepancy in the questions. It was stated that the question papers were in two languages, English and Hindi. The English version was considered to be the verbatim translation of Hindi version. It was stated that question number 33 of English version and Hindi version are different and question No. 30 in Hindi version and question No. 32 are one and the same. It was pointed out by the learned counsel appearing for the party respondents that in fact there was no mistake in the question as such, but one question which appeared as 33 in English was shown in Hindi as question No. 30.
15. It was not stated by the applicant as to what sort of prejudice was caused to him. It is not a case where one question paper was separately given to Roll No. 5077 or to any other particular candidate. It was a test conducted uniformly without any objection from any other person. The fact that the number of the questions assigned/shown in one paper (that is in English) is 33 while, for the same question in Hindi, the number assigned is different does not mean that there was any discrepancy as such. It is much ado about nothing.
16. The strenuous effort made by the learned counsel for the applicant that the candidate having Roll No. 5077 was subsequently introduced through back door is found to be travesty of truth. The respondents would submit that since Mr. Rajkumar B. Panjyara as Roll No. 5077 was introduced at the last moment, his name did not reflect in the website because there was no time for getting his name uploaded. Since the letter itself is dated 28.02.2014 and since the examination was to be conducted on the next day itself the only alternative was to give a handwritten hall ticket to that candidate, but that is no reason to say that any malpractice was committed by the respondents. The learned counsel appearing for the party respondents would submit that the whole conduct of the examination was undertaken by the Western Naval Command as was usually authorised by the competent authority and the recruitment is done for the whole naval command of this Country. Only because there was a slight delay in including the number 5077 at the last moment, it cannot be said that any foul play has been taken place.
17. Though at the time of argument, it was stated that there are certain numbers missing in the total list of candidates as can be seen from Annexure A-3, no such contention was raised in the pleadings. The roll numbers are assigned in order from 125076. The applications of so many persons might have been rejected for one reason or the other and therefore, the Roll Numbers of those persons need not be included in the list of candidates who were found eligible to appear for the written examination. Precisely, that it the reason why certain numbers are seen omitted. No such contention was raised in the pleadings and so it need not be addressed at all.
18. Relying on the decision of the Kerala High Court in Deepthy Vijaykumar Vs. Joint Registrar reported in 2008 (4) KLT 321 it is vehemently argued by the learned counsel for the applicant that the vacancies that arose subsequent to the notification cannot be filled up without publishing a fresh notification or causing amendment to the earlier notification. The facts dealt with in that case are entirely different. The issue therein related to appointment of Junior Clerks in a Cooperative Bank. It was found by the court that the selection/appointment was tainted with procedural irregularity and favouritsm granted to certain candidates granting higher marks in the interview and lowest marks to the written test rank holders and appointing more candidates than the vacancies that was notified. It is pointed out by the respondents that it was in the context of irregularity and illegality committed in the recruitment, it was observed by the court that the selection was had on the basis of the vacancies that arose subsequent to the notification as well. It was held by the Division Bench that on the basis of the vacancies that arose subsequent to the notification, the society cannot appoint three more persons without publishing or causing amendment. In that case, only two Junior Clerks were appointed as per the notification issued since only two vacancies were notified. Subsequent vacancies arose after the notification was published. There was a categoric finding in that case that a perusal of the records as well as the selection conducted would clearly show that the process of selection was conceived in fraud and delivered in deceit. The Hon'ble High Court has referred to the decision of the Hon'ble Supreme Court in Kishan Yadav and another Vs. State of Harayana and others (AIR 1994 SC 2166). In that decision it was found by the Supreme Court that the entire selection was stinking, conceived in fraud and delivered in deceit, and so it was held that individual innocence has no place as fraud unravels everything. As stated above the facts of this case are entirely different. In the notification itself it was specifically stated that the number of vacancies would be subject to change at the discretion of the competent authority. The reason for change or increase in the number of vacancies has also been dealt with earlier.
19. The decision of the Hon'ble Supreme Court in All India SC and ST Employees Association and another Vs. A. Arthur Jeen and others - (2001) 6 SCC 380 has also been referred to in this context. In that case although originally notification was issued to fill up 330 vacancies, later they were increased to 917 after getting approval of the Recruitment Board. As many as 58675 applications were received; out of them 32563 candidates were called for interview and 25271 candidates were interviewed. Hence it was found that no prejudice was caused by not inviting fresh applications. Therefore, the challenge against the selection and appointment was found against by the High Court. The judgment of the High Court was confirmed by the Apex Court.
20. The provision contained in the Recruitment Rules/notification
- Annexure A1 empowered the competent authority to increase the number of vacancies. That could not be assailed by the applicant pointing out any rule or authority on the point.
21. It is a case where Sl. No. 5077 came to be inducted for the post of Store Keeper well before the written examination. The claim of the applicant that said number was inducted during publication of the final result is factually incorrect. It is a case where the candidate with Sl. No. 5077 participated in the written examination itself. Thus the allegation raised by the applicant that there was lack of transparency or there was malafides in the conduct of the selection process is totally unreasonable and unfounded. It is not disputed that the applicant's answer paper was misplaced. There was no discrepancy in the questions or the answers to those questions provided. Therefore, the contention raised on the so called discrepancy in the question that the same question appeared twice does not assume any importance at all. How or why such discrepancy happened was well explained by the counsel for the respondents. It is also worthwhile to note that the said plea was raised by the applicant only later, by filing rejoinder. That also would unfold the fallacy of the plea raised by the applicant.
22. The learned counsel for the respondents would rely upon the decisions of the Hon'ble Supreme Court in support of the submission that after having appeared for the written test and interview, on his failure to get appointed the candidate cannot rush to the Court alleging bias against the selection. No allegation was made about any of the Members of the Recruitment Board or any other officer to show that any of them had any bias or prejudice to the applicant. Following the decisions of the Hon'ble Supreme Court in G. Sarana v. University of Lucknow 1976 (3) SCC 5885, Mank Lal v. N. Premchandh Singhvi AIR (1957) SCC 425 and Madan Lal v. State of Jammu and Kashmir 1995 (3) SCC 486, it was held by the Hon'ble Supreme Court in Madras Institute of Development Studies and another Vs. K.Sivasubramaniyan and others reported in (2016) 1 SCC 454 that it is well settled that 'if a candidate consciously takes part in selection process, he subsequently cannot turn around and question very selection process - Even before appearing for the interview or at the time of the interview even raise his little finger against the constitution of the selection committee, he cannot turn round and subsequently content that the process of interview was unfair or the selection committee was not properly constituted.' Here also the applicant took a chance to write the written examination. He could pass the written test and thus admittedly he was called for interview. So many other persons who succeeded in the written test were also called for the interview. Only because he was not selected in the interview he cannot now turn around and contend that the entire selection process is vitiated by malafides. There was no unfairness or malafides in the selection process. The law laid down by the Hon'ble Supreme Court in Manish Kumar Sha v. State of Bihar - 2010 (12) SCC 576 and Ramesh Chandra Sha v. Anil Joshy - 2013 (13) SCC 309 and also Omprakash Shukla v. Akhilesh Kumar Shukla 1986 (supplemental) Supreme Court Cases, 1985 also support that view. We find it unnecessary to quote the dictum laid down in each of these decisions, lest it should overburden this order. The principle laid down in all these cases, is that when a party participated in the examination/selection process, later when he found that he has not succeeded in the examination, cannot challenge the said examination. Here also, the applicant took part in the written examination and interview and only when he found that his name does not figure in the merit list prepared by the Recruitment Board, he came to the court questioning the entire selection process. We are inclined to hold that there is absolutely no merit in this Original Application. Exconsequente this application being sans merit deserves to be dismissed.
23. Hence, this O.A is dismissed. No order as to costs.
(Mrs.P. Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps