Andhra HC (Pre-Telangana)
Itha Saritha vs And on 21 April, 2016
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION No.19240 OF 2014 Dated 21.04.2016 Itha Saritha....petitioner And The Telangana Power Generation Corporation Limited, rep. by its Managing Director, Vidyuth Soudha, Somajiguda, Khairatabad, Hyderabad and another. .... Respondents Counsel for the petitioner: Sri Peeta Raman Counsel for respondents : Smt. K.Udayasri <GIST: --- >HEAD NOTE : --- ?Cases referred: : 1. 151(2008) DLR 353 2. Manu/DE/1712/2010 3. (1998) 2 SCC 566 4. AIR 2006 SC 2339 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION No.19240 OF 2014 ORDER:
The petitioner challenging the proceedings vide Lr.No.CGM (HR)/DGM(HR)/PO-C/WP.No.22178/2013, dated 19.06.2014 rejecting to conduct trade test to the petitioner separately or consider her candidature for provisional selection basing on the marks secured by the petitioner in the preliminary evaluation weightage marks plus written test marks for the post of Junior Plant Attendant (JPA) as illegal, arbitrary, discriminative and set aside the same.
02. The case of the petitioner is that in pursuance of the notification dated 05.01.2011 and 17.10.2011 issued by the first respondent, she had applied for appointment as Junior Plant Attendant (JPA), as a candidate belonging to the Scheduled Caste (Women) and she acquired educational qualification i.e. SSC and ITI in Electrician Trade, for the post of JPA. Later, she was called to appear for written examination. In the said written examination, she secured 49.64 marks and became eligible candidate to appear for the trade test in the ratio of 1:3. The first respondent also issued hall ticket to the petitioner for attending trade test which was held on 13.04.2013, but she could not reach examination hall within the time due to accident as she slipped from the auto rickshaw and received head injury and then she rushed to the nearby hospital, underwent treatment, and later proceeded to the examination centre, but by the time she reached examination hall it was 10.45 a.m. and thus there was a delay of 15 minutes to attend examination i.e. trade test, but she was not permitted to appear for trade test. On the same day, she brought to the notice of the second respondent about the cause for her inability to appear for the examination and submitted a representation, but the second respondent arbitrarily refused to conduct trade test to her. Thus, she was prevented from attending trade test for justifiable reason, but the same is neither intentional nor wanton.
03. While the matter stood thus, the respondents declared the result of trade test, but her name was not found in the selection list of JPAs., on internet. Again on 05.07.2013 list of cut of marks, for various power generations projects/ stations to locals and non-locals for all reservation candidates, was kept on internet. Without reference to the trade test, the petitioner secured 49.64 marks, whereas the cut of marks fixed for non local candidates was 50.56. The cut of marks for SC (women) local candidate in KTPP and KPPS (O & M) are 40.84 and 46.24 respectively.
04. The persons who secured lesser marks than the petitioner were selected and appointed as JPAs after completion of formalities. Thus, denial of appointment to the petitioner is illegal, arbitrary. She made a representation to the respondents, but no purpose was served, thereupon she filed a writ petition No.22178 of 2013, wherein a direction was issued by this Court dated 24.04.2014 to conduct trade test afresh, if not possible consider her candidature based on her performance at the first two stages. If the authorities are desirous of acceding to such a request, this Court cannot have any object. After receiving direction from this Court in the writ petition, the respondents passed a detailed order expressing their inability to conduct trade test afresh or provisional selection based on the marks secured by her in the preliminary evaluation weightage marks plus written test marks.
05. As per clause 9 of supplemental notification dated 17.10.2011, the preliminary evaluation, written test and trade test would be conducted allotting 25 marks to each test, but mere failure to appear for trade test is not a ground to deny appointment as JPA to the petitioner, since she secured highest marks than the cut of marks or highest marks than the candidates who was selected provisionally.
06. It is also contended that out of notified posts, about 150 posts were filled up, 30 posts and 28 posts were not filled up, due to lack of qualified candidates, but actually all the posts to be filled based on the notification and they cannot be carry forward as backlog vacancy, as there are many unfilled vacancies reserved for SC (Women), and such action of the respondents is illegal and arbitrary and prayed to allow the writ petition.
07. The respondents did not file counter.
08. During course of hearing, Sri Peeta Raman, learned counsel for the petitioner, contended that the petitioner secured more marks than the provisionally selected candidates both in preliminary evaluation and written test and failure to attend trade test is not on account of her fault, but due to unavoidable accident while proceeding to examination hall, and even if the marks secured by the petitioner are taken into consideration she became entitled for appointment as JPA and therefore she cannot be denied appointment as JPA and prayed for grant of aforesaid relief.
09. Smt.K.Udayasri, learned counsel for the respondents, would contend that the denial of employment is only in accordance with the procedure when the petitioner failed to appear for trade test/ skill test, which is essential for JPA, to test the knowledge in the subject, but in the absence of testing her performance in the particular trade, she cannot claim any right by virtue of her appearance in preliminary evaluation and written test, without attending trade test, which is essential for selection of JPA who are dealing with technical works at the stations and prayed to dismiss the petition.
10. Considering the rival contentions, perusing the material available on record, the point that arise for consideration is, Whether the petitioner is entitled for selection as JPA based on the marks secured by her both in preliminary selection considering weightage to the marks secured by her in the written examination, without attending trade test. If so, denial of provisional selection by the respondents is illegal and liable to be set aside?
POINT:
11. Undisputedly, the petitioner applied for appointment as JPA in pursuance of the notification issued by the respondents dated 05.01.2011 and supplemental notification dated 17.10.2011, and nonetheless she qualified for appointment and appeared for written test and also secured 49.64 marks, which is highest than the cut of marks fixed by the respondents and highest marks secured by the candidates who was provisionally selected for the post of JPA. It is also not in dispute that the petitioner did not attend to trade test, which is one of the test prescribed for selection of JPA as per the notification before deciding the entitlement of the petitioner for selection as JPA.
12. It is necessary to advert for the basis for issuing notification in G.O.M.S. No.132 dated 03.06.2013 Finance (SMPC- I) Department, in paragraph 2 of the notification, the Government directed the Heads of Departments to send proposals about actual requirements with reference to the nature of work and activities of the departments. In pursuance of this GO, notification was issued on 05.01.2011 inviting applications fixing eligibility criteria for selection of JPA. As per notification dated 05.01.2011 and supplementary notification dated 17.10.2011, the respondents fixed method of recruitment. Clause 9 of the notification deals with the total marks fixed for three different stages of selection process. It is extracted hereunder for better appreciation, "9. Selection Procedure:
A. Criteria for preliminary evaluation:
Total Marks = 100.
Weightage Marks:
(i) 30 marks will be allocated against marks obtained in the qualifying examination of ITI [Marks secured in ITI x 30/Total Marks in ITI].
(ii) Weightage up to 10 Marks will be given for having passed the qualifying examination of ITI before the date of notification @ 2 marks for each completed year of passing. Fraction of months will be ignored.
(iii) Service Weightage to contract labour worked in Power Generating Stations of APGENCO:
Service for more than 6 months... 10 Marks Service for less than 6 months... 5 Marks.
Note:- The candidates claiming experience in APGENCO have to submit Gate Pass/ Annual Account Slip of EPF i.e. minimum one gate pass for the candidates who are claiming as Contract Labour to the proof of working for less than 6 months and minimum of 7 Gate Passes or Annual Accounts Slip of EPF for the candidates claiming to have worked as Contract Labour for more than 6 months. B. 25 Marks for Written Test: Based on the marks secured as per criteria mentioned in "A" above, a combined merit list of all trades shall be drawn and the candidates in the ratio of 1:20 will be called for "Written Test" duly following the rule of reservation. Any candidate carrying equal marks under 1:20 ratio shall also be called for the said written test comprising of 25 marks consisting of 50 multiple choice questions and each question carrying "half" mark on Power Plant Related Topics of Thermal and Hydel Generating Stations with common paper in Telugu and English.
C. 25 Marks for Trade Test: Based on the marks secured as per the criteria mentioned in "A" & "B" above, a combined merit list of all trades shall be drawn and the candidates in the ratio of 1:3 will be called for "Trade Test relating to respective Trades" duly following the Rule of Reservation. D. There will be no interview.
Note:(I) The syllabus for the written Examination is shown in the Annexure.
(II) The "Written Test" to the candidates will be conducted at the following places:
Sl.No Place of Examination Generating Stations 1 VIJAYAWADA
(i) Dr. NTTPS, Ibrahimpatnam, Krishna District;
(ii) Nagarjunasagar Tail Pond Dam/Guntur District; and
(iii) Upper Sileru Hydro Electric Scheme Vishakapatnam District 2 HYDERABAD
(i) Nagarjunasagar Hydro Electric Scheme, Main Dam, Nalgonda District;
(ii) Pulichintala Hydro Electric Scheme, Nalgonda District;
(iii) Kothagudem Thermal Power Station (O&M), Khammam District;
(iv) Kothagudem Thermal Power Station-V & VI Stages, Khammam District;
(v) Lower Sileru Hydro Electric Scheme, Mothugudem, Khammam District;
(vi) Kakatiya Thermal Power Project, Chelpur, Warangal District;
(vii) MHES, Peddapally, Karimnagar District;
(viii) RTS, Ramagundam, Karimnagar District;
(ix) MHES, Pochampad/Nizamsagar, Nizamabad District;
(x) Priyadarshini Jurala Hydro Electric Scheme, Mahabubnagar District; and
(xi) Srisailam Left Bank Hydro Electric Scheme, Mahabubnagar District.3
KADAPA
(i) Srisailam Right Bank Hydro Electric Scheme, Kurnool District; and
(ii) Rayalaseema Thermal Power Project, Kalamalla, Kadapa District.
(III) The written test will be conducted on 04.12.2011 at the above three centres instead of five centres notified on 05.01.2011, to the eligible candidates as per the selection procedure indicated in clause-9 above in the ratio of 1:20 duly following the rule of reservation.
(IV) The date and place of "Trade Test" will be communicated "online" through APGENCO website http://www.apgenco.gov.in& http://apgenco.cgg.gov.in separately.
..........
.........."
13. In sub clause (D) of clause 9, the respondents fixed the examination centres and fixed time and date for various tests. Sub clause (iv) of clause (D) of clause 9 of the notification further says that date and place of "Trade Test" will be communicated "online" through APGENCO website http://www.apgenco.gov.in AND http://apgenco.cgg.gov.in separately.
14. The procedure for final selection is prescribed in clause (E) of the notification and it is extracted hereunder.
"E. Final Selection of the candidates: Based on the criteria mentioned at "A" to "C" above, selection will be made based on the "State Wide combined Merit List of all Trades", against 20% of posts meant for non-locals/ locals and will be allotted to Project/Power Generating Stations as per their rank secured in the said merit list of all trades by giving "Project" preference for allotment of non-local/ local candidates against the vacancies available. Selection will also be made based on the "District Wide Combined Merit List of all Trades" against 80% of posts meant for locals and allotted to Project/ Power Generating Stations as per their rank secured in the said merit list of all trades and "Project"
preference for allotment of local candidates against the vacancies available, duly following the Rule of Reservation."
15. Therefore, according to the notification and supplemental notification every candidate who applied for the post of JPA has to undergo both written test and trade test besides possessing qualification, the preliminary evolution, written test and trade test is for 100 marks. Thus, the candidates, who applied for JPA, should undergo all three stages of selection process; the first stage is entry to second stage, the basis for entry into third stage is the marks obtained in second stage. But the petitioner did not attend to trade test though she secured highest marks in preliminary evolution and written test. Undisputedly, she became eligible for the trade test in the ratio of 1:3 but she did not appear for the trade test. Therefore, the contention of the respondents counsel is that when she did not appear for the trade test she is not eligible for the reason that her knowledge in particular trade is to be tested. Therefore, due to her absence, she is disentitled to claim selection.
16. Earlier, she filed writ petition No.22178 of 2013 and obtained an order from this Court dated 24.04.2014. In the said writ petition, she sought the following relief:
"(i) declaring the action of the respondents in not selecting the petitioner to the post of JPA in pursuance of Supplemental Notification dated 17.10.2011 based on merit by condoning her absence to the trade test held on 13.04.2013 and selecting lesser meritorious candidates than petitioner as illegal, arbitrary, discriminative, unfair labour practice, non application of mind and opposed to the doctrine of legitimate expectation besides violative of Articles 14 and 16 of the Constitution of India: and (ii) consequently, direct the respondents-corporation to select petitioner duly taking her merit into consideration and also appoint her as JPA along with others."
17. In the present writ petition also the petitioner claimed almost identical relief though in the earlier round of litigation relief was denied, but issued a direction against the respondents to find out whether there is any possibility of holding trade test separately or to consider her candidature based on the marks secured by her. In pursuance of the direction, the respondents passed a detailed order dated 19.06.2014 whereby denied the appointment to the petitioner while admitting about securing 49.64 marks in total both in preliminary evaluation and written test, while expressing their inability to conduct trade test, separately. According to the rules and the procedure contemplated under the notification, the person who secured highest marks in the preliminary evaluation will be called for written test in the ratio of 1:20 and if the candidate got through the written test, the candidates will be called for trade test in 1:3 ratio and the candidates who secured required marks will be selected in the ratio of 1:1 based on the total marks obtained/ secured in all three tests, viz., preliminary evaluation, written test and trade test.
18. Here, the petitioner did not appear for trade test though she secured 49.64 marks in total both in preliminary evolution and written test. The respondents are dealing with power generation at various stations and the employees are required to attend the work at power generating stations which is hazardous and far fetched, spread in vast areas like; Fuel Oil Pump House, CW Pump House, Trash racks, Clarified Water Pump House, DM Water Plants, Water Clarification Plants, Coal Handling Plant, Ash Handling Plant, Ash Disposal Lines, Ash Pond Area, Cooling Tower, Chlorination Plant, Chemical Dosing Pump House, Boilers, Turbo generator & Auxiliaries, Switchyard, Transformers Yard etc., which are located in isolated places; required to work at high elevations of 57 meters on Boiler; 24 meters in TG Building; 225 meters on chimney; 78 meters on Cooling Towers and Climbing on ladders is essential on tall structures like Chimney: Cooling Tower and Boilers, Difficult jobs like breaking of large coal boulders; working round the clock in close proximity with heavy machines, needs to be exposed to high temperatures and vibrations; while working on boiler burner floors; Turbine auxiliaries & valves; Replacement of oil guns, cleaning of burners in hot condition, carrying of gas cylinders, soot blowing operation etc., over the boiler floors are of highly arduous nature. Clearing of furnace clinkers by physically hitting with crow bars through the boiler peep holes & inspection covers are of more risky nature, again involved in high temperature zones; Shunting operations like coupling & decoupling of wagons, operation of rail changing points (points men operations) in the marshalling yards, loco operations are highly arduous, round the clock, and are stretched over kilometers of length in the railway marshalling yards, thinly populated,, working over the coal conveyor floors is highly risky because of the gradients over conveyor floors, are thinly populated and are lonely places; working along Ash Disposal Lines and over the Ash Pond area is totally risky since thinly populated, far stretched and unguarded; Carrying of motors, pumps and heavy spare parts of large machines over high elevations is highly arduous; Round the clock shift duties in off-site and main plant are highly essential & inevitable.
19. In view of supplementary notification No.01/CGM/(HR)/ 2011 when the JPA are required to attend the work specified therein, their performance is to be tested only in the trade test. Otherwise, it is difficult for the respondents to know the performance in the particular trade. Since the employment of the petitioner as JPA is purely technical, based on the performance in the knowledge in trade. Without testing her knowledge or performance in particular trade, she cannot be provisionally selected. As the duties requires special skills while dealing with hazardous operations, if the petitioner is provisionally selected without testing her performance, it is not only endangerous to her but the public at large; sometimes due to mishandling of machinery, the department would put to substantial loss.
20. Similar instances came up for consideration before different courts, where the Courts highlighted the importance of trade test and selection process strictly adhering to the procedure prescribed in notification. In Mahesh Kumar and Another v. Union of India and Others a similar question of selection for technical posts came up for consideration i.e. Security Assistant Grade-II, wherein the Delhi High Court held as follows:
"14. ....the procedure for selection to the post of Assistant Security Guard Grade II at Rajya Sabha comprised of four stages. Each stage/ level was an elimination round to the next stage meaning thereby only those candidates who qualified in the preceding stage could make it to the next stage and requisite standards were prescribed for determining the question of inter-se eligibility of the candidates at each stage. The necessary corollary of the same is that the candidates who qualified in the written test could only make it to the physical measurement tests; the candidates who qualified the physical measurement tests could only make it to the Field test/ Physical Efficiency Tests; and the candidates who qualified in the Field Test/ Physical Efficiency Tests could only make it to the final stage of the personal interview and for actually qualifying and making it to the final merit list the candidates were required to score 50% of the total marks allocated for interview (which is 25 marks)."
21. Further at paragraph 17 the Court held as follows:
"17. For recruiting candidates to a particular post a procedure is prescribed by the experts in the field after carrying out the necessary research taking into consideration the requirement of the job and nature of employment. One should not lose sight of the fact that if the selection process is divided into series of steps then each step has a purpose to serve and has been included with an objective, be it written test/ physical test or an interview. If the intellect of the person can be checked by way of a written test the behavior/ conduct/ mannerism/ personality/ aptitude etc. can be judged through an interview. An interview is not only conversation between two or more people (the interviewer and the interviewee) where questions are asked by the interviewer to obtain information from the interviewee but observation of his personality and other traits which cannot be ascertained more appropriately by a written examination. The procedure devised by the respondent eliminates arbitrariness to a great extent as it is not just the whim of the members of the interview board. There is proper format for evaluation which is almost akin to another written examination. The format for evaluation has different marks for different traits which are detailed in earlier paragraphs."
22. It is further held that, "19......Once the procedure has been evolved and implemented, then the court should be slow to interfere with the same unless it is arbitrary and there are malafides and bias and the procedure is such which will cause great prejudices."
23. From the principle laid down in the above judgment, it is evident that when certain procedure is prescribed to test the eligibility of a particular candidate for a particular post, they must necessarily undergo all the tests and who secured total highest marks in all the tests alone will be selected subject to other rules of reservation.
24. In Puneet and Another v. Union of India (UOI) and Others the Delhi High Court held at paragraphs 26 as follows:
"26. To summarize on the legal position, pertaining to direct recruitment posts of a technical nature, declared as 'Non Selection' posts, persons who have apprenticeship certificates have to be put in a seniority list as per the direction No.4 issued by the Supreme Court in U.P. Road State Transport Corporation's case and after subjecting the eligible candidates to a trade test and an interview, all those who are declared suitable for being appointed, irrespective of their merit which actually need not be tested at all and the test being restricted to determine suitability, be offered appointment in order of seniority."
25. Finally in last three lines at paragraph 28 the Delhi High Court clarified that if on the basis of trade test and interview which was conducted, suitability can be culled out de hors the merit, the same should be done and if not the candidates be re-subjected to a trade test with the focus of the test being to determine suitability and not the relative merit.
26. The Apex Court in Siya Ram v. Union of India and Others at paragraph 12 held as follows:
"12. .... Norms had been laid for the Selection Board to follow. No fault can be found with the same. Apart from the objection that excessive marks had been allocated for viva-voce, the appellant has been unable to point out any illegality or irregularity in the selection process. Functions and duties attached to the post of Chief Personnel Inspector have nowhere been set out. It is not for this Court to suggest as to what marks should be allocated for interview in a case like the present one."
27. In view of the decisions of the Delhi High Court when trade test is prescribed to test the suitability of a particular candidate, the candidate must necessarily subject to such test, otherwise not eligible for such selection.
28. Even in K.H.Siraj v. High Court of Kerala and Others the Apex Court while deciding the issue with regard to insisting to conduct interview held as follows:
"Interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidates' academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a judicial officer. A Judicial Officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. It is, therefore, the High Court has set a bench mark for the oral interview, a bench mark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of
450. The prescription, is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court."
29. So even in the Apex Court's Judgment, an oral interview is prescribed to test certain personal qualities of candidate which are essential. Here to test the knowledge and academic excellence of the petitioner and other candidates, who applied for the post of JPA, the written examination so also the trade test is prescribed which is a third stage of selection after passing through first and second stages i.e. preliminary evaluation and written tests. Unless any candidate is qualified in preliminary evaluation, such candidate is not eligible to participate in the second test i.e. written examination, in the ratio of 1:20, if the candidate qualified in the written test, then such candidate will be eligible to appear for the trade test in the ratio of 1:3. Thus, each stage of selection process is to elimination to the next stage, the facts of the case are identical to the case reported in Mahesh Kumar and Another v. Union of India and Others referred supra
30. In the present case, the petitioner qualified in Stages 1 and 2 but did not appear to the third stage i.e. trade test which is essential to decide the knowledge of an individual in academic excellence, performance in a particular trade which is the final stage of selection. The respondents have no opportunity to assess knowledge in the trade, to find out whether she is suitable to the post or not. Therefore, she is not eligible for appointment as JPA in the first respondent- Corporation, though she secured more than cut of marks or highest marks than the selected candidates in preliminary evaluation and second stage of selection i.e. written test.
31. On over all consideration of the law declared by the Delhi High Court and necessity of interview and specific test for the selection process, trade test is essential to JPA's to attend different works in power generating plants. But the petitioner invented a different cause, did not appear for the third stage of selection process i.e. trade test, thereby disqualified for selection as JPA. On this ground alone the petitioner is not entitled to claim any relief in this writ petition.
32. The petitioner earlier filed writ petition No. 22178 of 2013, which was dismissed with a specific direction as follows:
"that the respondent authorities to consider the petitioner's representation dated 13.04.2013, seeking the indulgence of the authorities to permit her to face the trade test, once again and to pass order thereon, as expeditiously as possible. The learned counsel has further stated that for whatever practical reason, if the authorities find it very difficult to conduct trade test afresh, since it involves the officials of the Jawaharlal Nehru Technological University, the authorities may as well consider the case of the petitioner based on her performance at the first two stages. If the authorities are desirous of acceding to such a request, this Court cannot have any objection"
33. For claiming identical relief this Court did not give any liberty to the petitioner to revive her request by filing writ petition in the event of her candidature for appointment as JPA based on the marks secured in the two stages of selection process or by conducting a separate trade test was not considered. In the absence of liberty, the petitioner is not entitled to claim same relief.
33. Therefore, on over all consideration of material on record, I find no grounds to issue any direction against the respondents and in favour of the petitioner to consider her candidature for provisional selection as JPA based on preliminary evaluation and written test. Accordingly, the point is answered.
34. In the result, the writ petition is dismissed. No costs.
35. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
__________________________________ M. SATYANARAYANA MURTHY, J Date: 21.04.2016