Delhi High Court
Union Of India (Uoi) vs Neelu [Along With Lpa No. 2449/2005] on 20 March, 2007
Author: Mukul Mudgal
Bench: Mukul Mudgal, J.P. Singh
JUDGMENT Mukul Mudgal, J.
Page 1263
1. Admit. With the consent of the learned Counsel for the parties these appeals are taken up for final hearing. Both these appeals raise a question relating to the recruitment of nurses in Ram Manohar Lohia Hospital (hereinafter referred to as "RML Hospital") and are accordingly being dealt with by a common judgment.
2. Writ Petition No. 7652/2005 in the case of Union of India v. Neelu, arises from the judgment dated 17th March 2005 passed by the Central Administrative Tribunal (CAT), whereas LPA No. 2449/2005 in the case of Union of India v. Sarita arises from the judgment of the learned Single Judge dated 13th September, 2005, deciding a similar issue. For the sake of convenience, I have taken up facts of the W.P. (C) No. 7652/2005 which are similar and illustrative of the issue involved in the LPA No. 2449/2005 and a judgment in this case would cover facts of the LPA excepting an additional plea raised by Mr. P. P. Malhotra, the learned Additional Solicitor General, regarding the jurisdiction of the writ court.
3. The issue involved in the present case arose from an advertisement issued by the Management of RML Hospital on 6th and 12th September, 2003. The relevant provisions of the said advertisement read as follows:
S.No. Post/Category/ Age No. of Essential Qualification Desirable Qualifications Scale of Pay Limit Vacancies and experience required (in and rese- Experience years) rvation
1. Staff Nurse/Group 'C'/ 35 57 (Fifty 1. Diploma in General 2.a) Registered as Rs. 5000-150-8000 Seven) Nursing and Midwifery Nurse, and b) (Unreseved or equivalent. Registered as midwife
-29 OBC-19, or equivalent with any SC-06 ST-03 state Nursing Council.
X
2. - - - - -
3. - - - - -
Page 1264 Eligibility for Applicants:
Applicants must fulfill the educational qualifications, experience and age limit and other criteria for the post applied for as prescribed above on the last date of receipt of the applications failing which the application shall be summarily rejected and no correspondence will be entertained in this regard. Candidates are therefore, advised to satisfy themselves before applying for the respective post that they possess the requisite essential qualification and experience. The prescribed essential qualifications are the bare minimum and mere possession of the same does not entitle candidates to be called for the interview/selection.
The maximum age indicated for each post is for general category candidates. Relaxation in upper age limit will be available to SC/ST/OBC and other as per Govt. of India instructions issued from time to time.
Scheme of Selection:
Selection to the above mentioned posts will be on the basis of interview, which will be conducted by a duly constituted Selection Committee. However, if the number of applications received for a post is large, then the hospital reserves the right to hold a written test for the purposes of short listing of the candidates for interview.
4. The respondent Neelu instead of holding a Diploma as required in the advertisement, held a Degree in Nursing with 64.1 per cent marks. She was called for the interview, provisionally selected and given the provisional appointment letter. The respondent was, however, aggrieved by the following condition imposed in the provisional appointment letter which stipulated as follows:
(ii) The candidature of the above post is provisional subject to his/her having passed Diploma in General Nursing & Midwifery/B.Sc. (Nursing) with 65% or more marks in aggregate.
5. The grievance of the respondent arose as not having secured 65% marks as stipulated in the provisional letter of appointment, she was not given the appointment pursuant to her selection and this led to her approaching the CAT, Delhi. The case of the respondent is that the above advertisement was issued pursuant to the recruitment rules of Willingdon Hospital and Nursing Home (Class-3 Post) framed under Article 309 of the Constitution of India and has relied on the qualification prescribed for Staff Nurse according to rules which read as follows:
Essential:
(i) General Nursing and Midwifery or equivalent.
(ii) (1) Registered as Nurse; and (2) Registered as Midwife or equivalent with any State Nursing Council.
Note: Qualifications are relaxable at the discretion of the competent Authority in case of candidates otherwise well qualified.
The respondent's case was inter alia based on the plea that the 65% cut-off was not stipulated in the rules and was illegal.
Page 1265
6. The learned Additional Solicitor General Mr. P.P. Malhotra and Mr. Dalip Mehra, Advocate, appearing for the appellant Union of India, have submitted as follows:
(a) Pursuant to the advertisement dated 12th September, 2003, for the 57 advertised posts, the appellant received, 8713 applications and 7827 applicants were found eligible as per the recruitment rules. Taking into account the large number of eligible applicants and the lack of facilities and infrastructure in the RML hospital for holding screening/written test for such a large number of applicants and the UPSC having declined to hold written test, it was decided to fix a cut off marks percentage for the purposes of short listing of the candidates and it was decided to call only those candidates for interview who had secured minimum of 65% or more marks in Diploma/ B.Sc (Nursing). This led to issuance of a provisional letter of appointment including qualification of 65% marks that the respondent did not possess leading to her non-employment. Consequently, reliance was placed by the appellant on the judgment of Hon'ble Supreme Court in M.P. Public Service Commission v. Navnit Kumar Potdar , particularly on the following paragraphs:
8. The sole purpose of holding interview is to search and select the best among the applicants. It is obvious that it would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview. It appears that Union Public Service Commission has also fixed a ratio for calling the candidates for interview with reference to number of available vacancies.
9. ------In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short-listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of short-listing is part of the process of selection. In substance and realty this process of short-listing is a part of process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any Page 1266 rational and reasonable basis, on which the list of applicants should be short listed, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice; shall be presumed to have better experience. This process will not be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In a sense Section 8(3)(c) places a bar that no person having less than five years of practice as an Advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in conflict with the requirement of Section 8(3) of the Act.
12. On behalf of the respondents, it was pointed out that there is no presumption that an Advocate having seven and half years of experience will be more suitable for the post of Presiding Officer of the Labour Courts than an advocate having only five years of experience because it all depends on the personal merit of the candidate concerned. It is true that it has been found that sometimes the persons with lesser years of experience and practice have proved to be better Advocates and they excel in profession. The success in profession is not necessarily linked with the years of practice. But that may be an exception. Normally, it is presumed that with longer experience an Advocate becomes more mature. In any case, this fixing the limit at seven and half years instead of five years of the practice for purpose of calling the interview cannot be said to be irrational, arbitrary having no nexus with the object to select the best amongst the applicants.
(b) He has further submitted that in so far LPA 2449/2005 in respect of Ms. Sarita is concerned, the writ court had directly entertained the writ petition contrary to the judgment of the Hon'ble Supreme Court in L. Chandra Kumar v. Union of India and Ors. 1997 SCC (L& S) 577, particularly the paragraph 99 which reads as follows:
In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 232-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in Page 1267 discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
(c) It is further submitted on behalf of the appellant that in this case the appellant could not have approached this court under Article 226 of the Constitution directly in view of the dictum of the Hon'ble Supreme Court and consequently relief ought not to have been granted.
(d) The learned Counsel for the respondents has relied upon the judgment of the Hon'ble Supreme Court in State of Punjab and Ors. v. Manjit Singh and Ors. 2003 (8) ACE 534 and has submitted that there is a material difference between the short-listing and qualification prescribed by rules and in the present case the plea of the respondent runs directly contrary to the paragraphs 8 and 10 of the above judgment which reads as follows:
8. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number I down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed than in case some cut-off marks are fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting as observed above, any number of candidates required in certain proportion of the number of vacancies, they may be shortlisted in order of merit from serial No. 1 up to the number of candidates required.
10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cut-off marks say for Page 1268 example out of 10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible up to the 500th position whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks.
(e) Reliance was also placed on the judgment of the Hon'ble Supreme Court in P. Mahendran v. State of Karnataka , which was relied upon by the learned Single Judge in LPA 2449/2005, relevant portion of which reads as follows:
If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with Recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature. In the instant case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellant were eligible for appointment, their selection was not in violation of the Recruitment rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission.
(f) It is also submitted that a condition imposed contrary to and beyond the advertisement and beyond the rules on the basis of which advertisement was given, could not be sustained and should be set aside. The Hon'ble Supreme Court in State of Punjab and Ors. v. Manjit Singh and Ors. and P. Mahendran v. State of Karnataka, had held that for the purposes of the short-listing minimum qualifying marks could not be prescribed contrary to the rules. The short-listing by providing cut-off marks when the rules do not permit such retrospective cut offs has therefore, been held not to be permissible. The CAT has given the following reasoning in arriving at its judgment:
6. In the case of State of Punjab and Ors. v. Manjit Singh and Ors. , it was held that since selection was by interview of eligible candidates, for the purpose of short-listing, it would not at all be necessary to provide cut-off marks. Instead, any number of given candidates could be taken out from top of the list up to the number of candidates required in order of merit. In Munna Roy it was held that while it is true that mere inclusion in selection list does not confer any right and mandamus cannot be issued, but the Court can interfere when an administrative authority takes decision on erroneous, arbitrary and irrational reasons. Such reasons are subject to judicial review. Page 1269 In the case of Dharam Chand Vashisht, the criterion laid down by UPSC for short-listing of candidates having five years' service after obtaining degree in electrical engineering, being not prescribed in the rules, was held to be illegal and without justification. In Gunaru Karan refusal of appointment on the basis of amendment of rules after selection was held to be improper.
7. In the present case, admittedly applicant fulfillled the requisite qualifications for the post as laid down in the recruitment rules formulated under Article 309 of the Constitution, as also as per the advertisement in the Employment News. The prescription of 65% marks in diploma/degree for short-listing was not provided for either in the recruitment rules or in the advertisement. As this condition was not reflected even in the advertisement, the respondents could not have superimposed this condition and particularly, even after the stage of declaring the applicant as qualified in the interview and issuing an offer of appointment. The rulings relied upon on behalf of applicant are squarely applicable to the present case. The criterion adopted by the respondents in withdrawing the offer of appointment of applicant after selection is in the peculiar facts and circumstances of the present case, arbitrary and irrational. Provision of cut off marks after holding an interview is certainly erroneous and arbitrary as held in the case of Manjit Singh. Authorities could have easily selected the adequate number of candidates from the top of the list up to the number of candidates required, in order of merit.
7. In so far as the plea of the learned Additional Solicitor General is concerned about LPA 2449/2005 is concerned, it is not the case of lack of inherent jurisdiction of the High Court. The High Court had the jurisdiction to deal with the service matter but as a matter of prudence would not exercise this jurisdiction under Article 226 of the Constitution when alternate remedy was provided in the manner indicated by the Hon'ble Supreme Court. In spite of the existence of such power the High Court should not normally have exercised its jurisdiction under Article 226 of the Constitution in view of the alternate remedy of CAT and dictum of the Hon'ble Supreme Court. However, there are two reasons why this plea of the Additional Solicitor General must fail. Firstly, this plea of lack of jurisdiction was never urged or pleaded before the learned Single Judge and secondly, an identical issue has been decided by the CAT by its judgment dated 17th March 2005 in the connected Writ Petition Union of India v. Neelu which has led to the present connected LPA 2449/2005. Thus, since the CAT was bound by its own judgment, the remanding of the writ petition leading to LPA No. 2449/2005 to CAT would in the facts of the present case have been a futile and an academic exercise. Consequently, the plea of the Additional Solicitor General, in my view, is not applicable to the present case, particular when several opportunities to file counter affidavit before the learned Single Judge were granted to the appellant and its failure to do so led to the impugned judgment.
8. Considering the above facts, circumstances and the law , the following picture emerges:
Page 1270
9. According to the learned Additional Solicitor General for the appellant, due to a large number of candidates and want of infrastructure, it was not practicable for the Hospital to hold written test and the UPSC also had declined to hold the written test. Therefore, cut off marks percentage had to be fixed for the purpose of the short-listing the candidates and only those candidates were to be called for interview who had scored 65% or more marks in Diploma. It is further submitted that a provisional select list was prominently displayed on the notice board from 15th September, 2004 to 25th September, 2004 clearly stating that the candidature was provisional and subject to having passed Diploma in general nursing/mid-wifery/degree with 65% or more marks in aggregate and production of original certificates. This was done to take care of any inadvertent error which might have crept in while scrutinizing such a large number of applications. It is argued that the offer of appointment as issued to the candidates provisionally selected, including the respondents herein, was also provisional and subject to candidates having scored 65% or more marks which criteria was uniformly applied to all the candidates and was done before the selection process was concluded.
10. It is emphasized by the learned Counsel for the appellant that as per certificates provided by the respondents, Neelu had scored an aggregate of 64.1% marks in degree and Sarita had scored an aggregate of 61.5% marks in certificate of Nursing but the same were erroneously treated as above 65% at the time of short-listing of the candidates before calling them for interview and as such their names appeared in the provisional select list and provisional offers of appointments were issued to them.
11. The learned Counsel for the respondents have reiterated the judgment titled P. Mahendran v. State of Karnataka (supra) which has been referred to by the learned Single Judge. I have also gone through the judgments mentioned in para 8 of the impugned judgment. All the said cases deal with the prospective application of the amendments of recruitment rules if made during the process of selection. The facts and circumstances of the said cases were entirely different.
12. In my view, there was no amendment of rules as such because inter alia the prescribed essential qualifications as per advertisement were the bare minimum and mere possession of the same did not entitle a candidate to be called for the interview/selection and in the scheme of selection also it was mentioned "...however, if the number of applications received for post is large then the hospital reserves a right to hold written test for the purpose of holding interview."
13. Both the above provisions declared in the advertisement, in my view, gave sufficient in built leverage to the Hospital management for modifying the scheme of selection. Therefore, due to want of infrastructure and difficulties in making arrangement for written test and also because UPSC had declined to conduct the written test and if, in such circumstances, the management decided about a cut-off percentage of marks obtained by the Page 1271 candidate in the examination which gave him/her eligibility to apply for the post, does not amount to amendment of the rules as such and the question of prospective or retrospective application does not arise in this case.
14. The learned Counsel for the appellant has cited the case titled M. P. Public Service Commission v. Navneet Kumar Potdar and Anr. (supra) in support of his contentions. In the said matter, the eligibility condition for appointing Presiding Officer of the Labour Court was practice of minimum 5 years as an Advocate. A large number of applications were received, therefore, a decision was taken to call for interview only those candidates who had completed 7-1/2 years of practice instead of 5 years. The question before the court was as to whether in the process of short-listing, the Commission had altered or substituted the criteria of eligibility of a candidate. The High Court had allowed the petition. The Hon'ble Supreme Court of India set aside the judgment of the High Court and held as under:
As we have already pointed out that where the selection is to be made purely on basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the Commission or the Selection Board has no option but to short-list such applicants on some rational and reasonable basis.
15. To similar effect is the opinion of the Hon'ble Supreme Court of India in a recently decided matter titled K.H. Siraj v. High Court of Kerala and Ors. . Briefly the facts in this case are that the High Court of Kerala had invited applications for appointment to post of Munsif Magistrates. Written test was held and the passed candidates were called for interview. 1800 candidates had applied. 118 passed the written examination, 88 passed the interview. The High Court prescribed cut off marks in oral examination for further elimination of candidates. The case of the appellant was that after a comprehensive written test, prescribing cut off marks in interview was in violation of the rules existing at the time of the advertisement. The question before the Hon'ble Supreme Court was whether the fixing of separate minimum cut off marks in the interview for further elimination of candidates after a written test was violation of the Statute. The Hon'ble Supreme Court of India held as under:
Thus, apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter.----
16. I find force in the contention of the learned Additional Solicitor General that because for 57 posts 8,713 applications were received and 7,827 Page 1272 candidates were eligible, it was practically impossible to hold written exam by the hospital management for such a large number of candidates. The UPSC also had declined to conduct the written test, therefore, the management decided to issue provisional letters of selection with a cut off percentage of 65% or more marks in aggregate in Diploma in General Nursing and Midwifery or equivalent. Thus, no fault can be found with the appellant in prescribing the cut off percentage of 65% in the Diploma in General Nursing and Midwifery or equivalent. This was also according to the position of law laid down by the Hon'ble Supreme Court in the case of M.P. Public Service Commission (supra). However, the cut off percentage prescribed by the appellant was in respect of a 'Diploma' in General Nursing and Midwifery or equivalent whereas, the respondent Neelu held a 'Degree' in Nursing. Thus, even though the determination of a cut-off percentage on the basis of a diploma is permissible in law, such determination cannot be ipso facto applied to the facts of the present case. A degree connotes a qualification higher than that of a diploma by virtue of the superior quality of the curriculum and training to a student pursuing a degree as compared to a student pursuing a diploma. Therefore, in my view, a mechanical application of the cut off percentage in a diploma or equivalent to the respondent Neelu in WP(C) 7652/2005 who is a degree holder cannot be countenanced as it would tantamount to treating unequals as equals, contrary to the mandate of Articles 14 and 16 of the Constitution of India.
17. Furthermore, the qualification prescribed for the Staff Nurse according to the Recruitment Rules of Willingdon Hospital and Nursing Home (Class-3 Post) pursuant to which the advertisement dated 6th and 12th September, 2003 were issued by the RML Hospital does not mention 65% marks in Diploma in General Nursing and Midwifery or equivalent. It was only in the letter of appointment that such condition was imposed. It was also provided by the rules that the qualifications are relaxable at the discretion of the competent authority in case of the candidates otherwise well qualified. Thus, the appellant had sufficient discretion to select respondent Neelu who had secured 64.1% in a higher course of degree in Nursing and Midwifery that too, in First Division, as compared to a diploma prescribed in the advertisements, by relaxing the percentage. The respondent Neelu could thus not be rejected on the basis of a cut off percentage for a Diploma holder prescribed later in the appointment letter. Consequently, the Writ Petition (C) No. 7652/2005 filed by the Union of India against the judgment of CAT qua the respondent Neelu is dismissed whereas the LPA No. 2449/2005 filed by the Union of India against the judgment of the learned Single Judge qua the respondent Sarita is allowed in view of the reasons given by my learned brother Hon'ble Mr. Justice J. P. Singh, in a separate judgment rendered by him today. Parties are, however, left to bear their own costs.