Central Administrative Tribunal - Delhi
Ram Kesh Meena vs Navodaya Vidyalaya Samiti on 9 October, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.2075/2012 Order Reserved on: 29.05.2013 Order pronounced on 09.10.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Dr. Birendra Kumar Sinha, Member (A) Ram Kesh Meena S/o Sh. Meetha Lal Mena R/o Vill. & PO Saimarda Baya Kurgao Tesh. & Distt. Karauli (Raj). Applicant (By Advocate: Shri Yogesh Sharma) Versus Navodaya Vidyalaya Samiti Through the Commissioner A-28, Kailash Colony New Delhi. The Assistant Commissioner (Pers.) Navodaya Vidyalaya Samiti Headquarters A-28, Kailash Colony New Delhi. Respondents (By Advocate: Sh. S.Rajappa) O R D E R By V. Ajay Kumar, Member (J):
The applicant is working as PGT (History) at Jawahar Navodaya Vidhyalaya. In the year 2010, the respondent Navodaya Vidyalaya Samiti invited applications from the eligible persons in a special recruitment drive for filling up of 15 posts under reserved category (SC-2, ST-13) of Principals in the pay band of Rs.15600-39100 with grade pay of Rs.6600 on direct recruitment (Annexure A2). Since the applicant is fully qualified and eligible for appointment as Principal in terms of the said Notification, submitted his application through proper channel.
2. The applicant appeared for the written examination and the consequential interview. Though only 3 candidates under ST quota, as against the total vacancies of 13 under ST quota, including the applicant, appeared in the written test and interview, the respondents appointed only 1 person under ST quota.
3. The applicant submits that as per the merit list published by the respondents he secured 95 marks out of the 200 marks prescribed for the written test and in the interview he was given 8 marks out of 40 marks. In reply to his RTI application, the respondents vide letter dated 05.03.2012 informed that since the applicant not secured the minimum prescribed marks for the selection, his name was not recommended for the DPC and accordingly he was not issued the offer of appointment to the post of Principal.
4. The applicant submits that neither in the advertisement nor in the recruitment rules, there is no mention that the written test as well as interview are qualifying in nature. Hence, both the tests should be used only for the purpose of preparing the merit list of the eligible candidates. Further, fixing qualifying marks is also against to the recruitment rules and also to the terms of the advertisement. Once 13 vacancies under ST quota are available and only 3 candidates participated in the selection process and when the applicant stood at No.2 in the merit as per the written test marks, the respondents ought to have appointed the applicant also without resorting to fixing of any cut off marks in the interview.
5. It is further submitted that since the respondents have not mentioned anything about the minimum qualifying marks in the Annexure A2 Notification/Advertisement, they cannot fix the same thereafter. It amounts to changing the rules after the game is commenced, which is against to the settled principles of law.
6. The respondents through their counter submit that the respondents decided to fix the minimum qualifying marks at 50% for general candidates and 45% for SC/ST candidates to be secured separately in written test as well as in interview. The applicant had qualified the written test by securing 95 marks out of 200 marks, i.e., by securing 47.5% of marks in the written test but he secured only 8 marks out of 40 marks, i.e., 20% only in the interview. Since the applicant did not secure the minimum of 45% marks in the interview, his name was not included in the final select list.
7. The respondents further submit that it is the prerogative of the respondents to fill up all the vacancies or not even though required number of candidates were selected in the selection process. No candidate, though selected, has any indefeasible right for appointment. It is further submitted that the applicant knowing fully well that he has to secure the minimum qualifying marks both in the written test as well as in interview, participated therein and hence, estopped from questioning the said method on a subsequent date.
8. The respondents also submitted that even if the contention of the applicant that no cut off marks can be fixed in the interview, is accepted, the applicant has not secured the minimum qualifying marks of 45% after adding the interview marks to the marks obtained in the written test. The applicant secured 95 marks in the written test and secured 8 marks in the interview as against the total marks of 200 and 40 respectively. As a result he secured 103 marks out of 240 marks which comes to only 42.91% in total, which is less than the minimum qualifying marks of 45% fixed for the SC/ST candidates. Therefore, the applicant is not entitled for final selection.
9. Heard Shri Yogesh Sharma, the learned counsel for the applicant and Shri S. Rajappa, the learned counsel for the respondents and also perused the pleadings on record.
10. Shri Yogesh Sharma, the learned counsel for the applicant while reiterating the OA averments, as narrated above, placed reliance on the following judgments:
K. Manjusree v. State of A.P. and Another, JT 2008 (2) SC 437.
Hemani Malhotra v. High Court of Delhi, JT 2008 (5) SC 640.
Dir. S.C.T.I. for Med. Sci. and Tech. and Another v. M. Pushkaran, JT 2007(13) SC 315.
11. Shri S. Rajappa, the learned counsel for the respondents placed reliance on the following Judgemnts in support of counter averments:
A) Lila Dhar v. State of Rajasthan & Others, (1981) 4 SCC 159.
B) Manjeet Singh, UDC & Others v. Employees State Insurance Corporation and Another, (1990) 2 SCC 367.
C) Madan Lal and Others v. State of J&K and Others, (1995) 3 SCC 486.
12. In K. Manjusree (supra), when the respondents prescribed the cut off marks for interview after the selection process is completed, the Honble Apex Court observed/held as under:
29. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
13. In Hemani Malhotra (supra), the Honble Apex Court by following the decision in K. Manjusree (supra) held that prescribing minimum marks during or after the process was illegal. The relevant parts of the Judgement are reproduced below:
9. From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
10. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.
11. At this stage this Court notices that as per the information supplied by the respondent to the petitioners under the provisions of Right to Information Act, the petitioner in Writ Petition Civil No. 490/2007 had secured 142 marks out of 250 prescribed for the written test and 363 marks out of 750 marks in vive-voce test, whereas the petitioner in Writ Petition No. 491/2007 had secured 153.50 marks out of 250 marks in the written test and 316 marks out of 750 marks in vive-voce test. There is no manner of doubt that the prescription of 750 marks for vive-voce test is on higher side. This Court further notices that Hon"ble Justice Shetty Commission has recommended in its Report that "The vive-voce test should be in a thorough and scientific manner and it should be taken anything between 25 to 30 minutes for each candidate. What is recommended by the Commission is that the vive-voce test shall carry 50 marks and there shall be no cut off marks in vive-voce test." This Court notices that in All-India Judges Association and ors. V. Union of India and Ors. (2002) 4 SCC 247, subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission (supra) were accepted by this Court. It means that prescription of cut off marks at vive-voce test by the respondent was not in accordance with the decision of this Court. It is an admitted position that both the petitioners had cleared written examination and therefore after adding marks obtained by them in the written examination to the marks obtained in the vive-voce test, the result of the petitioners should have been declared. As noticed earlier 16 vacant posts were notified to be filled up and only five candidates had cleared the written test. Therefore, if the marks obtained by the petitioners at vive-voce test had been added to the marks obtained by them in the written test then the names of the petitioners would have found place in the merit list prepared by the respondent. Under the circumstances, this Court is of the opinion that the petitions filed by the petitioners will have to be accepted in part. (Emphasis added)
14. In M. Pushkaran (supra), when the appellants originally notified 3 vacant posts of Security Guards and when the respondent Pushkaran, an Ex. Serviceman, was placed at Sl. No.4 in the select list, and when the third candidate who was offered employment subsequently declined the said offer, and when the appellants passed resolution to abolish the 3rd post, thereby denying appointment to the respondent Pushkaran, the Honble Apex Court held that it was incumbent upon the appellant to offer the job to the respondent who was next in the select list and the decision to abolish the 3rd vacancy and contract out the security services being a subsequent development, cannot be a ground to decline the offer to the respondent.
15. In Lila Dhar (supra), which was also considered in Hemani Malhotras case (supra), the Honble Apex Court framed the question as follows:
What is the ideal mode of selection to a Public Service, by written examination. by oral test (viva voce), or by a combination of both? If the last, what is the proper, relative weight that should be attached to the written examination and the oral test? Is the oral test so pernicious in practice, as suggested by some, that it should be abandoned without regrets or the weight to be attached to it be made minimal ? Has any such consensus emerged among the informed and the cognoscenti as to require the Court to scrap a selection as arbitrary on the sole ground that the weight accorded to the oral test appeared to be high ? and answered it as under:
6. Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu (AIR 1971 SC 2303), Ajay Hasia v. Khalid Mujib Sehravardi (AIR 1981 SC 487) and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualifications-prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives.
16. In Manjeet Singh (supra), the Honble Apex Court while holding that, in the absence of prescription of minimum qualifying marks for interview, prescription of 40% marks as prescribed for written test, for interview also, is reasonable, observed as follows:
6. So far as the remaining question that was debated before the Tribunal is concerned, we are of the view that the scheme intended for recruitment should be on the basis of an examination comprising of written test and interview. We agree with the submission of Shri Madhav Reddy that interview has its own place in the matter of the selection process and the choice of the candidate. Once this is recognised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided. In the absence of any prescription of qualifying marks for the interview test the same prescription of 40% as applicable for the written examination seems to be reasonable. That has been the view expressed by one of us (Punchhi, J.) in a decision (Rajesh Sood v. Director-General, Employees State Insurance Corporation, decided on August 7, 1985) (Reported in (1985) 2 Serv LR 699 (Punj & Har)) to which our attention has been drawn. We approve of the view. Accordingly we modify the direction of the Administrative Tribunal and hold that in the oral examination the pass mark shall be 40% and 40% pass marks shall be insisted separately for the written as also the oral test for qualifying in the selection.
17. In Madan Lal & Others (supra), the Honble Apex Court held that 9. .It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. ..
18. The contention of the respondents that since the applicant having participated in the selection process cannot question the same subsequently is untenable. It is not the case of the respondents that either in the advertisement or in the recruitment rules it was provided for minimum cut off marks for the interview and that the applicant who is having knowledge of the same participated in the selection process. Hence, the said contention cannot be accepted and accordingly, the Judgement in Madan Lal (supra) is not applicable.
19. A close observation of the facts of the case reveals that the respondents in fact fixed a benchmark, i.e., a standard was fixed for the purpose of selection. They have not fixed any specific cut off mark either for the written test or for the interview. A minimum qualifying marks of 50% for general candidates and 45% for SC/ST candidates was to be secured separately in written test as well as in interview. In the facts of the case, it cannot be equated with fixation of cut off marks.
20. In view of the above, neither the Judgements cited by the learned counsel for the applicant nor the Judgements cited by the respondents counsel, wherein the issue of fixation of benchmark in the mid-stream when there was no such stipulation in that regard in the advertisement was not considered, are applicable to the facts of the present case.
21. In State of Haryana v. Subash Chander Marwaha and Others [(1974) 3 SCC 220] while dealing with the recruitment of subordinate judges of the Punjab Civil Services (Judicial Branch) had to deal with the situation where the relevant Rule prescribed a minimum qualifying marks. The recruitment was for filling up of 15 vacancies. 40 candidates secured the minimum qualifying marks (45%). Only 7 candidates who secured 55% and above marks were appointed and the remaining vacancies were kept unfilled. The decision of the State Government not to fill up the remaining vacancies in spite of the availability of candidates who secured the minimum qualifying marks was challenged. The State Government defended its decision not to fill up posts on the ground that the decision was taken to maintain the high standards of competence in judicial service. The High Court upheld the challenge and issued a mandamus. In appeal, the Honble Apex Court reversed and opined that the candidates securing minimum qualifying marks at an examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. In the context, it was held:-
12. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility.
22. The Honble Apex Court in a recent Judgement decided on 16.08.2013 in Yogesh Yadav v. Union of India (Civil Appeal No.6799/2013 and batch), considered the issue involved in this OA. In the said case, matter pertains to appointment to the post of Deputy Director (Law), under the OBC category, in the Office of Competition Commission of India. The appellants therein applied in pursuance of the Notification and Clause-7 of the said Notification reads as follows:
7. Mode of Selection All the applications received by the due date will be screened with reference to the minimum qualification criteria. From amongst the eligible candidates, suitable candidates will be short listed through a transparent mechanism and the short listed candidates will be called for interview before final selection. Mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview. Thereafter along with the admit cards issued to the appellants for appearing in the written test, detailed instructions, including the scheme of the examination, were enclosed and the relevant instructions read as follows:
4. The selection to all the positions advertised will be based on a written test followed by an interview. The written test will carry 80% of the marks and interview will have 20% of the marks. The written test will be in two parts. The first part will be based on multiple choice questions for 50 marks. There is no negative marking in this multiple choice questions. The second part carrying 30 marks will be distributed to the descriptive questions on the subject of your specialization within the broad outline of the subject of specialization as indicated in the advertisement.
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9. Candidates who do not secure 50% of the marks in the test will not be called for the interview. However, for candidates belonging to the reserved categories, the cut off marks will be 40% of the total marks. The appellants, after qualifying the Written Test, faced the Interview but their names did not appear in the list of candidates finally selected. The appellants challenged the said action by stating that their non-selection was the result of altering the prescribed mode of selection mid-way, i.e., after the initiation of the recruitment process, which was impermissible. The precise contention was that the benchmark which was fixed by way of issuing instructions was not mentioned earlier, i.e., before the start of selection process, either in the advertisement or otherwise.
23. The Honble Apex Court, after considering the Judgements in Hemani Malhotra, Manjushree and Lila Dhars cases (supra) while upholding the view of the High Court that the aforesaid judgements were not applicable in the said case as the fact scenario was altogether different, by following the judgements in State of Haryana v. Subhash Chander Marwaha and Others, (1974) 3 SCC 220 and M.P.Public Service Commission v. Navneet Kumar Potdar & Another, (1994) 6 SCC 293, held that short listing which is done by fixing the `benchmark, to recruit best candidates on rational and reasonal basis, is legal and valid.
24. If we examine the present case in the light of the aforesaid dicta laid down by the Honble Apex Court in Yogesh Yadavs case, although nothing has been mentioned in the advertisement about the mode of selection, etc. but a conscious decision has been taken by the Selection Committee/DPC to fix the minimum qualifying marks at 50% for general candidates and 45% of SC/ST candidates to be secured separately in written test as well as in interview, which, in our view, cannot be said that the respondents have changed the criteria of selection in the midstream when there was no such stipulation in that regard in the advertisement.
25. Further, it is also not the case of the applicant that any of the candidates, who secured less marks [i.e., the marks obtained by him in the written examination plus the marks obtained in the interview], than him, was selected in view of the `benchmark, fixed by the respondents.
26. In Barot Vijaykumar Balakrishna & Others Vs. Modh Vinaykumar Dasrathlal & Ors., (2011) 7 SCC 308, the rules framed under Article 309 of the Constitution governing the selection process for the posts of Assistant Public Prosecutor in the State of Gujrat mandated that there would be minimum qualifying marks each for the written test and the oral interview. In this case, cut off marks for viva voce were not specified in the advertisement. As observed by the Honble Apex Court, in view of that omission, there were only two courses open. One, to carry on with the selection process, and to complete it without fixing any cut off marks for the viva voce, and to prepare the select list on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce. That would have been clearly wrong, and in violation of the statutory rules governing the selection. The other course was to fix the cut off marks for the viva voce, and to notify the candidates called for interview. This course was adopted by the Commission just two or three days before the interview/viva voce. Having observed that it did not cause any prejudice to the candidates, the Court did not interfere in the selection process.
27. Therefore, the contention of the applicant that, once 13 vacancies under ST quota are available and only 3 candidates participated in the selection process and when the applicant stood at number 2 in the merit, as per the total marks secured by him, the respondents ought to have appointed him is also untenable, in view of the Judgement in Subhash Chander Marwahas case (supra).
28. In the circumstances and for the aforesaid reasons, we do not find any merit in the OA and accordingly, the same is dismissed. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/