Central Administrative Tribunal - Ahmedabad
Ashok Kumar vs Kendriya Vidyalaya Sanghthan on 10 August, 2020
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CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O. A. No. 475/2018 With M.A. No. 205/2019
Ahmedabad, this the 10th day of August, 2020
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (Judicial)
Hon'ble Sh. A.K.Dubey, Member (Administrative)
Ashok Kumar
S/o Shri Jhamanlal Rathi,Aged 37 years,
Working as Vice Principal,
Kendriya Vidyalaya Ahmedabad Cantonment
Residing at 103, Shail Raj Tower,
Opp. Survanshi Tower,
Near Vastrapur Lake,
Ahmedabad- 380 015. ... Applicant
[By Advocate Mr. Joy Mathew]
Versus
1. Union of India notice through the Secretary,
Human Resource Development
Shastri Bhavan, C Wing,
Dr. Rajendra Prasad Road,
New Delhi - 110 001.
2. The Commissioner
Kendriya Vidyalaya Sangathan (HQ)
18, Institutional Area,
Shaheed Jeetsingh Marg,
New Delhi - 110 016.
3. The Assistant Commissioner (Estt.1),
Kendriya Vidyalaya Sangathan (HQ)
18, Institutional Area,
Shaheed Jeetsingh Marg,
New Delhi - 110 016.
4. Shri Manoj Kumar
Principal,
K.V. Haflong Sarkari Bagan,
Dt. Dima Hasao,
Assam - 788 820. ... Respondents
[By Advocate Mr.Shashikant Gade]
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O R D E R (Oral)
Per: Jayesh V. Bhairavia, Member (J)
1. This application has been filed under Section 19 of the Administrative Tribunals Act, 1985 for the relief to quash and set aside the entire selection process conducted by the respondents for selecting Principal as the same is illegal, arbitrary, discriminatory and in violation of Articles 14, 16 and 21 of the Constitution of India. It further seeks to quash and set aside the provisional select list dated 2.6.2017 (Annex.A/2) and order dated 3.7.2018 appointing the respondent No.4 i.e. Manoj Kumar as Principal (Annex.A/1). In addition to said prayers, the applicant has also prayed to direct the respondents to appoint the applicant as Principal.
2. It is contended by the applicant that in September 2016, an Advertisement was published for filling of 92 posts (24 OBC, 13 for SC, 6 for ST, 1 for OH and 47 for General category) of Principals in KVS. The mode of selection for the post of Principal will be based on the performance of the candidates in the written test and interview for which 160 and 60 marks respectively were fixed. The weightage of written test and interview was fixed as 85:15.
3. The applicant participated in the selection process as general category candidate and after his success in the written test, he was called for personal interview vide notice dated 14.03.2017 (Annex.A/4). Accordingly, applicant attended personal interview held on 11.04.2017.
4. It is further contended that the respondents have published result of written test and interview for the post of Principal (Annex.A/5), wherein, name of applicant was placed at No.44 below one Sh. Pankaj Kumar Jain (Sl.No.43) and above the respondent No. 4 Sh. Manoj Kumar who was at Sl. No.45.
5. Thereafter, on 02.06.2017 (Annex.A/2) the respondents published a list of 84 (Gen. 44, OBC 22, SC 12 and ST 6) candidates selected provisionally for appointment as Principal. However, the name of applicant was not included in the said list.
6. The applicant came to know that respondents had reduced the total marks of written test from 160 to 157 marks and the respondents 3 have calculated 85% of total 157 marks for the written test instead of total 160. The respondents had arbitrarily reduced total marks of written test from 160 to 157 which has caused injustice to him. It is stated that though the applicant was at Sl. No. 44 in the result declared for written and interview (Annex.A/5),however he was not included in the selection list.
7. The counsel for the applicant mainly submitted that the respondents had erroneously changed the rules of game. In this regard, it is submitted that in the advertisement, it was declared that 85% of total 160 marks of written test and 15% of interview of 60 marks would be counted for final result. However, without notice to any candidate, respondents had arbitrarily reduced 3 marks from the total of written test i.e. 160-3=157 marks, the said selection process is illegal and contrary to the law laid down by the Hon'ble Apex Court in the case of Hemani Malhotra Vs. High Court of Delhi reported in [(2008) 7 SCC 11]. Therefore, the very selection process is required to be quashed and set aside.
8. It is also submitted that in the written test, the applicant got 116 marks out of 157 and 52 marks in interview out of 60 weightage of which in the ratio of 85:15 comes to 62.803 + 13 = 75.803 . It is contended that respondents should have given 3 grace marks to all the candidates towards written test instead of reducing 3 marks from the total 160 marks as prescribed in the advertisement. It is his contention that had the respondents considered total 160 marks towards written test allowing 3 grace marks, then applicant would have received 119 marks instead of 116 marks 85% of which comes to (119x85 divided by 160)=63.218. Further, after adding 13 marks of interview total weightage comes to 63.218+13=76.218 and he would have found place in the list of selected candidates.
It is further contended that as per the select list (Annexure A/2) for general category, Sh. Pankaj Kumar Jain (Sl.No. 43) has been shown as last candidate. However, if respondents had taken 85% of total 160 marks then the weightage marks of the applicant and Avneesh Kumar (Sl. No. 42) would have equal i.e. 76.218. In this regard, the applicant has referred a Chart (Annex.A/6) in which comparative marks of Serv Sh. Avneesh Kumar Pathak, Pankaj Kumar Jain, Ashok Kumar (applicant) and Manoj Kumar are being 4 shown herein below whereby, Table (A) indicates 85% of 157 marks and Table (B) indicates 85% of 160 marks and the total weightage marks, which reads as under:
Table: (A) Name Marks scored 85% marks Marks scored in 15% Total mark in Written test (A) interview mark (A+B) out of 157 out of 60 (B) Avneesh 124 67.134 60 8.75 75.884 Kumar Pathak Pankaj 117 63.344 50 12.5 75.844 Kumar Jain Ashok 116 62.803 52 13 75.803 Kumar (applicant herein) Manoj Kumar 116 62.803 52 13 75.803 Table : B (If 3 Grace Marks are granted) Name Marks scored 85% marks Marks scored in 15% Total mark in Written (A) interview mark (A+B) test out out of 60 (B) of 160 Avneesh 127 67.46875 60 8.75 76.21875 Kumar Pathak Pankaj 120 63.75 50 12.5 76.25000 Kumar Jain Ashok 119 63.21875 52 13 76.21875 Kumar (applicant herein) Manoj Kumar 119 63.21875 52 13 76.21875 The learned counsel for applicant relying upon the aforementioned table, vehemently argued that though the name of applicant was at Sl. No. 44 and above Shri Manoj Kumar in the final result for written and interview, but respondent-department had appointed Sh. Manoj Kumar who is below him. It is also the grievance of applicant that though in the advertisement 47 posts were ear-marked for general category however same has been reduced to 45.
9. Per contra, the Respondent- Department has filed its reply controverting the contention of the applicant. It is submitted by the respondent that the advertisement for the post of Principal and other teaching posts was issued by the respondent in the month of September, 2016. Initially, in the advertisement, 90 posts of Principal was published and not 92, as averred in the O.A. It was also mentioned in the advertisement that vacancies were tentative which were later reduced from 90 to 85 and, wherein, general candidates vacancies were UR-45 instead of 47. Resultantly, respondents had prepared a select panel of 84 candidates while keeping one post 5 vacant under the general category till the final outcome of the OA No.1009/2017 (Brijeshpal Singh Vs. UOI), which was pending before Principle Bench of this Tribunal. It has been argued that out of 45 General category posts, Sh. Pankaj Kumar Jain was appointed at No. 43 and 44th vacancy was filled up by one Sh. Jitendra Prashad Dobhal (HH in General category) and, accordingly, total 44 posts were filled as per the merit list.
10. Later on, the O.A. No.1009/2017 was dismissed and one vacancy of Principal which was kept in abeyance till disposal of said O.A., was subsequently offered to the candidate whose name was kept at Sl. No.1 in the reserve panel of General category. It is submitted that the applicant herein i.e., Sh. Ashok Kumar and Sh. Manoj Kumar i.e., respondent No.4 had secured equal weightage marks i.e. 75.803, in this context, it is stated that the senior amongst the candidates who received the equal marks, would have preference and accordingly, in the reserve panel, Sh. Manoj Kumar was placed just before applicant being senior in age, since his date of birth is 01.08.1972 while the date of birth of Sh. Ashok Kumar is 24.05.1979. Thus, the last general vacancy was filled up by appointing Sh. Manoj Kumar was appointed as Principal. Therefore, it is not correct on the part of the applicant to contend that respondents has illegally denied his claim for appointment to the post of Principal.
11. Sh. Shashikant Gade, learned counsel for the respondents submits that the weightage of written and interview was fixed at the ratio of 85:15 for the post of Principal. Initially, 160 marks were fixed for written test. However, final result was prepared by reducing 3 marks for the reason that after uploading the final answer keys with respect to written test, the recruitment agency came to know that out of 160 questions three questions were wrong and thus it was decided to not to give any marks for the same, and accordingly, marks of three questions were reduced, as such, weightage marks were 157 and not
160. It is submitted that the respondents had declared final result of written test and interview based on the weightage 85:15 as per the clause 3 (a) of the advertisement. It is vehemently submitted that applicant cannot claim any indefeasible right for his appointment on the ground that his name was placed in the merit list. Learned counsel for the respondents placed reliance on the judgment reported in (2013) 4 SCC 540 Tej Prakash Pathak & Ors. Vs. Rajasthan High 6 Court & Ors. and judgment passed by Hon'ble Gauhati High Court in the case of Ashok Kumar Rawa & 17 Ors. Vs. U.O.I. & Ors decided on 19.2.2015 and denied the version of the applicant that respondents have changed the rules of game.
12. Applicant has filed a rejoinder. Additionally, learned counsel Mr. Joy Mathew argued that once the selection process begins, method/terms & conditions of selection cannot be altered. Despite that, respondents have unilaterally altered the selection method by reducing total marks of 160 to 157 for written test and prepared the final result by taking 85% of 157 marks instead of 160 marks, which is not permissible as per the settled principles and the law laid down by various Courts.
13. It is further contended that nowhere in the advertisement, it was stated that the department will prepare and maintain a wait list or keep a reserve panel as the respondent KVS never prepared and maintain a wait list. The respondents ought to have considered the candidate(s) who stands in the merit list and same was required to be followed for filling up the vacancies. Wait list is not a list meant for pick and choose someone from out of merit. The method adopted by the respondent department is absolutely arbitrary, discriminatory and violative of Articles 14 and 15 of the Constitution of India.
14. It is further contended that the respondents have never objected or disputed the correctness of the result of the test or the applicant's position placed in the said result. The applicant was placed at Sl. No.44, above the respondent No.4. However, the respondents have offered appointment to the candidate who was placed below him. The learned counsel for applicant placed reliance on judgment rendered by Hon'ble Apex Court in Deepa E.V. Vs. UOI & Ors., and of Hon'ble Gujarat High Court rendered in GPSC Vs. Perma Nilesh Rajendra Kumar & Ors. and lastly, order passed by Hon'ble the Rajasthan High Court at Jodhpur in Yogendra Kumar Vs. State of Rajasthan & Ors. in SB.Civil Writ Petition No. 1791/2017 dated 26.4.2017 and submitted that applicant was illegally denied his legitimate right to be appointed as Principal.
15. Respondents have filed M.A. No. 205/2019 for deleting the U.O.I. from the array of respondents. The same is not accepted. Hence this M.A. is dismissed.
716. We have considered the rival contentions put forth by the respective parties.
17. The dispute relates to appointment to the post of Principal in KVS in pursuance to recruitment process held with respect to advertisement No.11 dated 24-30th September, 2016. Apparently, respondents advertised certain posts viz. Principal, Post Graduate Teachers (PGTs) Trained Graduate Teachers (TGTs), Primary Teachers and Primary Teacher - Music vide and invited applications from the eligible candidates and a final select list was published based on incumbents' performance in the written test and interview. It is noticed that initially, the advertisement for 90 posts of Principal (UR-47, OBC-24, SC-13, ST-06) was issued by the respondents. Subsequently, it was revised to 85 posts with the breakup of vacancies i.e., (UR-45, OBC- 22, SC-12, ST-06 = 85). Accordingly, for the General category/Unreserved category total 45 posts for Principal was required to be filled up.
18. It is further noticed that for the post of Principal the method of selection is prescribed in clause 3 of the advertisement. The clause 3(a) reads as under:
Clause 3(a): "Candidates will be selected on the basis of their performance in written examination and interview put together. The KVS reserves the right to decide the cut off marks in written examination and interview separately. The decision of the KVS about the mode of selection to the above posts and eligibility conditions of the applicants for interview shall be final and binding. No correspondence will be entertained in this regard.
However, the mode of selection for all the above posts will be at the sole discretion of Kendriya Vidyalaya Sangathan and may be changed before the date of start of the on-line application with new notification. The final merit list of Principal, PGTs, TGTs, Primary Teacher and Primary Teacher (Music) will be based on the performance of the candidates in written test and interview. The weightage of written test and interview will be 85:15 for the post of Principal, PGTs, TGTs, Primary Teacher and Primary Teacher (Music) the weightage of written test, performance test and interview will be 60:25:15."
Further, the clause 3(f) (i) prescribed Scheme of Examination for the post of Principal, therein total 160 number of questions were prescribed and for answers to it 160 marks were allotted.8
19. It is revealed from the record that respondents have conducted written test for the vacant posts of Principal. After display of answer keys, the candidates had submitted their challenges to it and accordingly, the recruitment agency reviewed it and, the final answer key for the written test for the post of Principal was uploaded on the official website of the KVS in the month of March 2017. Out of 160 questions, three questions were found wrong by the recruiting agency hence, marks for wrong questions were not provided to any candidates and the competent authority prepared the final result out of 157 questions only with the same weightage of 85%. At the same time, the weightage of 15% of marks obtained out of total 60 marks for interview was remained unchanged. This factual matrix is not in dispute.
20. The sole submission of the counsel for the applicant is that the respondents ought to have granted 3 grace marks for wrong questions and the final result should have been prepared with 85% of 160 instead of 157 marks. It is further argued that had the respondents taken total 160 marks and calculated weightage accordingly, then the applicant could have secured more weightage and for which he placed reliance on the table narrated above. According to which, the applicant might have secured weightage of 76.21875 marks instead of 75.803. It is further grievance of applicant that he was at Sl. No.44 in the result declared for written and interview test, however, respondents offered appointment to respondent No.4, who stands at Sl.No.45.
21. In our considered view, aforesaid plea of the applicant is not acceptable for the reason that the competent authority had rightly decided to exclude three wrong questions and thereby not crediting any marks for such wrong questions. The final result was based on 157 questions only and weightage was of 85% out of said 157. It is seen that Clause 3(a) of method of selection stipulates weightage of written test and interview as 85:15 for the post of Principal. Applicant has secured 116 marks in written test, 85% of which comes to 62.803. He secured 52 marks out of 60 in the interview and 15% of which comes to 13 totalling 62.803 + 13 = 75.803 weightage. The decision, not to grant any mark for wrong questions to any candidate, cannot be said to be unjust or unfair. We are of the firm opinion that once it is found that incorrect questions exists then said questions 9 are required to be omitted from the scope of evaluation instead of giving grace marks.
22. So far as the grievance of the applicant that though in the final result of written test and interview he was placed at Sl.No.44, appointment was offered to a candidate who is at No.45 causing discrimination against him is concerned, it is noticed that undisputedly, applicant and respondent No.4 herein, secured equal weightage. In this situation, considering the date of birth of both the candidates, it was found that respondent No.4 is senior in age and, thus, appointment was offered to him, and we are of the considered opinion that respondent Department has not committed any illegality in following the procedure on the issue.
23. The submission of the applicant that respondents have changed the rules of game, is not tenable. It is reiterated that respondents have followed the method of selection stated in the advertisement and maintained the ratio of weightage 85:15 in declaring the result of written test and interview. The judgments relied upon by the applicant is also not helpful in the facts and circumstances of the case.
24. In view of aforesaid discussions, we do not find any merit in the claim of the applicant. Hence the O.A. being devoid of merit, is dismissed. No costs.
(A.K.Dubey) (Jayesh V.Bhairavia)
Member (A) Member (J)
mehta.
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