Central Administrative Tribunal - Chandigarh
Harsimrantjit Kaur D/O Balwinder Singh vs Union Of India Through Advisor To The ... on 31 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH
ORIGINAL APPLICATION NO.060/00013/2015
Order Reserved on 28.07.2015
Pronounced on 31.07.2015
CORAM: HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
HON'BLE DR. BRAHM A. AGRAWAL, MEMBER (J)
Harsimrantjit Kaur D/o Balwinder Singh, resident of H. No.16, A Block, Sandhu Avenue, G.T. Road, Chhehartha, Amritsar.
Second Address:
Flat No.345, Tower S-4, Savitry Towers, V.I.P. Road, Zirakpur,
Applicant
Versus
1. Union of India through Advisor to the Administration, Chandigarh, U.T.
2. Chandigarh Administration through its Secretary, Department of Health and Family Welfare, Union Territory, Chandigarh, Sector 9, Chandigarh.
3. The Director Principal, Govt. Medical College & Hospital Chandigarh, Sector-32, Union Territory, Chandigarh.
4. Kiran W/o Dr. Kuldeep Singh, (Roll No.560), C/o Ms. Teena Gupta, R/o House No.3857, Sector 47-D, Chandigarh.
5. Teena Gupta W/o Sh. Anupam Mahajan, (Roll No.660) R/o House No.3857, Sector 47-D, Chandigarh.
Respondents
Present: Sh. Karanbir Singh, counsel for the applicant.
Sh. Rakesh Verma, counsel for respondents No.1 to 3.
Sh. Dhiraj Chawla, counsel for respondents no.4 and 5.
O R D E R
BY HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
8(ii) Issuance of a writ in the nature of Certiorari quashing the impugned action Annexure A-4 of the respondents filling up post of Senior Physiotherapist as per Advertisement Annexure A-2 dated 27.08.2014 not as per qualification mentioned in the advertisement and now filling up the post as per amended qualifications which has been amended without notice after the written test was held.
(iii) Issue the writ in the nature of mandamus directed by the respondent to fill the post as per the advertisement.
It has been stated in the O.A. that the applicant is working as Junior Physiotherapist on contract basis at the Govt. Medical College and Hospital, Sector-32 since 2009 on consolidated emoluments and the contractual employment was extended from time to time. One such extension order dated 24.12.2010 has been annexed (Annexure A-1). The respondents had issued advertisement dated 28.08.2014 (Annexure A-2) for filling various posts including post of Senior Physiotherapist and there were three vacancies in this category. The essential qualification prescribed for selection as per the advertisement was Degree in Physiotherapy or equivalent from a recognized University with 5 years experience in the field in a recognized/reputed institution. The applicant applied for this post and appeared for the written test under Roll No.548 and passed the written test as per merit list (Annexure A-3). The applicant appeared for the interview on 23.12.2014 but prior to that the respondents had issued public notice dated 22.12.2014 whereby selection criteria was amended.
2. In the grounds for relief it has, inter alia, been stated as follows:
i. the applicant seeks remedy against respondents No.2 and 3 for illegal action (Annexure A-4) whereby the respondents filling up the post of Senior Physiotherapist as per Advertisement (Annexure A-2) dated 27.08.2014 not as per the qualification mentioned in the advertisement dated and now filling up the post as per amended qualifications which has been amended without notice after the written test was held.
ii. It is a settled law that the criteria of interview can be fixed only within the qualification and experience mentioned in the initial advertisement and in the present case the respondents are giving the marks of the interview beyond the advertisement Annexure A-2 hence the criteria fixed by the respondents to give 4 marks for higher qualification is liable to be quashed. Moreover, the paper during the written examination has been swapped with the occupational therapist. However, both the degrees are different so in that regard the paper should have been different. Hence this O.A.
3. Vide interim order dated 12.01.2015, the respondents were directed not to declare the final result for selection of Senior Physiotherapist till the next date of hearing and this position continues till date.
4. M.A. No.060/00442/2015 was filed for impleading Ms.Kiran ad Ms. Teena Gupta in the array of the respondents as Respondents No.4 and 5 and this M.A. was allowed vide order dated 24.04.2015.
5. In the written statement filed on behalf of respondents No.1 to 3 it has been stated that the selections were made by the answering respondents strictly on the basis of essential qualification as prescribed in the Recruitment Rules (Annexure R/1), which was duly incorporated in the advertisement and was published in the leading newspapers and also on the official website of GMCH on 08.08.2014 (Annexure A/2) whereby only online applications were invited to fill the various para-medical posts for which the last date of submission of applications was 30.09.2014. Further, to maintain the uniformity amongst all the candidates, who have gained experience after attaining the essential qualification as per the advertisement, marks were awarded as prescribed in the selection criteria which was duly approved by the Competent Authority and the same was also incorporated in the addendum which was put on the official website of GMCH on 04.12.2014 (Annexure A-3) whereby the list of provisionally shortlisted candidates was also displayed for the information of all the candidates. Later, Public Notice was also put up on the official website on 22.12.2014 (Annexure A/4) whereby the same selection criteria was again displayed alongwith the list of finally short listed candidates for the interview in connection with various posts advertised, on the basis of the scrutiny of the hard copies of applications as well as the merit in the written test.
6. Besides, vide para 5(vii) of advertisement No.28642 dated 07.08.2014 published on 08.08.2014 it was clear that on the basis of written test , the candidates would be shortlisted. Accordingly, the candidates who applied online for the post of Senior Physiotherapist were called for written test on 23.11.2014. Due to administrative reasons, the list of provisionally eligible shortlisted candidates for interview was published on 22.12.2014 instead of 20.12.2014. Thus, Public Notice was put up on the official website of 22.12.2014 (Annexure A/4) whereby the same selection criteria was again displayed along with the list of finally shortlisted candidates for the interview in connection with the various posts that had been advertised.
7. The candidates, who have gained experience over and above the essential qualification as per the advertisement, were awarded Marks as prescribed in the Selection Criteria (Annexure A/3 and A/4) on the pattern given below:
* One (01) mark for each year.
* 0.5 mark for not less than six months.
* However, maximum marks shall not exceed 04 marks in any case. Thus a candidate having 04 years and above will be given maximum 04 marks only.
Similarly, the candidates who had attained higher qualification were awarded marks for their higher qualification on the pattern given below:
* (1st Division) 04 * (2nd Division) 03 * (3rd Division) 02
8. In the written statement filed on behalf of respondents No.4 and 5 it has been stated that after conducting the written test on 23.11.2014, the result was declared on 01.12.2014 (Annexure R-4/1) short listing the candidates who secured the minimum benchmark wherein the applicant was not included but the private respondents were shortlisted bearing roll no.560 and 660. Subsequently, the respondent hospital issued addendum on 04.12.2014 short listing some more candidates and this included the applicant as well. The private respondents possess the degree of Master of Physiotherapy hence would be entitled to be granted 4 marks for the higher qualifications. The result/merit list (Annexure A-3) also disclosed the selection criteria for all the posts including the post of Senior Physiotherapist as per Recruitment Rules because there has to be some criteria on the basis of which the candidature of the shortlisted candidates was to be assessed. For all the posts there was uniform criteria which included 30 marks for basic qualification, 4 marks for higher qualification, 4 marks for additional experience and 10 marks for interview. Therefore, when the selection criteria is clearly spelled out before the interview process and uniformity applied for all the posts on all the candidates, it cannot be said that the advertisement or the selection criteria has been amended midway since no criteria was disclosed in the advertisement as it only disclosed the essential qualifications and the pay scale and nothing more whereas to select a candidate there are number of other factors that need to be considered such as higher qualifications, experience, and performance in the interview. Therefore, there is no illegality in the selection criteria or process as the respondents have validly and legally declared the selection criteria at the time of declaring the result on 04.12.2014 (A/3) and on 22.12.2014 (A/4). Hence the contention of the applicant that the advertisement dated 07.08.2014 (A/2) is complete enough and includes the selection criteria is wholly erroneous and calculated move because she does not possess the high qualifications and therefore, will not get 4 marks for the higher qualifications.
9. Rejoinder has been filed on behalf of the applicant reiterating the content of the O.A.
10. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant asserted that rules of the game have been changed midway. While the original advertisement for selection of Senior Physiotherapist prescribed only Degree in Physiotherapy with 05 years experience, the later Public Notice dated 22.12.2014 indicating the assignment of marks for considering the candidates short listed after the written test changing the selection criteria was not permissible. He cited Civil Appeal No.1313 of 2008 (arising out of SLP (C ) No.18330 of 2006) titled K. Manjusree etc. vs. State of A.P. & Anr. reported as AIR 2008 SC 1470, wherein it has been held as follows:
(A) Constitution of India, Art. 233-Selection to post of District and Session Judge-Criteria decided by Administrative Committee of High Court-was only minimum marks for written examination and not for interview-Introduction of requirement of minimum marks and interview, after entire selection process completed-impermissible
11. Learned counsel for respondents no.1 to 3 stated that there was no change in the eligibility criteria but the respondents through public notices dated 04.12.2014 and 22.12.2014 have clarified the criteria for assessing the shortlisted candidates at the time of interview so that all of them were considered in a fair manner. He asserted that there was no change in the eligibility criteria, hence there was no change in the rules of the game as alleged by learned counsel for the applicant and in fact publication regarding the criteria for selection from amongst the shortlisted candidates ensured that selection would be carried out in transparent manner.
12. Learned counsel for respondents no.4 and 5 endorsed the arguments advanced by learned counsel for respondents no.1 to 3 and stated that it was eminently reasonable to allow additional marks for higher qualifications to any of the short listed candidates who possessed such qualifications.
13. We have carefully considered the pleadings of the parties, material on record and arguments advanced by learned counsel. We are of the view that issue of Public Notices dated 04.12.2014 and 22.12.2014 whereby the criteria for considering shortlisted candidates for selection to the post of Senior Physiotherapist was eminently reasonable and was also an exercise in transparency as it made clear as to how marks would be assigned to the short listed candidates keeping in view their experience, qualifications and performance in the interview. The initial advertisement only prescribed eligibility criteria for selection as Senior Physiotherapist which can be considered to be the minimum qualification required. If the persons with better qualifications and more experience were available, there was no irregularity in allowing weightage for the same. Hence prescribing clear criteria in this regard and also publicizing the same through the notices issued on 04.12.2014 and 22.12.2014 is an action that must be appreciated. Hence there is no merit in the claim of the applicant and the O.A. is rejected.
(DR. BRAHM A. AGRAWAL) (RAJWANT SANDHU) MEMBER (J) MEMBER (A) Place: Chandigarh. Dated: KR* 8 9 O.A. No.060/00013/2015 1