Central Administrative Tribunal - Delhi
Udham Singh vs Employees State Insurance Corporation on 11 April, 2023
1
O.A. No. 1452/2017
Item No. 18 (C-5)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1452/2017
This the 11th Day of April, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Udham Singh
S/o Sh. Goverdhan,
Age 31 year, Group -C,
R/o Village Bhulwana, Tech Hordal,
District- Palwal, Haryana.
....Applicant
(By Advocate : Mr. R.K. Sharma)
VERSUS
1. Director General,
E.S.I. Corporation, Panchdeep Bhawan,
Kotla Road, New Delhi-110002.
2. The Director,
E.S.I.Corporation,
E.S.I. Dispensary, Tilak Nagar, Delhi.
3. The C.M.D,
Edcil, India Ltd,
Plot No-18 A, Sector-16, A,
Film City, Noida. U.P.
4. The Director,
E.S.I.Corporation,
E.S.I. Hospital, Sector-9A, Gurugram,
Haryana -122.
.... RESPONDENTS
(By Advocate : Mr. Akshay Thakur for Mr. Yakesh Anand)
2
O.A. No. 1452/2017
Item No. 18 (C-5)
ORDER (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) By virtue of the present OA, the applicant seeks the following reliefs :
"(i) To call the entire record of the selection process & declare the selection process is illegal on the basis of 75% question paper is out of Syllabus & quashes the Annexure A/1.
(ii) To direct the respondents revised the result after declaring the out of syllabus questions, prepared a fresh result list.
(iii) Direct the respondent to appoint the applicant on the post of Laundry Operator with all consequential benefits.
(iv) To allow the OA with exemplary costs.
(v) To pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts circumstances of the case."
2. During the course of the arguments, learned counsel for the applicant has produced before us andorder passed by a coordinate bench of this Tribunal on 15.02.2023 in OA number 714/2017, read with MA No. 2309/2022 and further associated with OA No. 735/2017 and MA No. 759/2017.
3. He submits that the facts, circumstances and background of the present OA are strikingly similar to the one in OA No. 714/2017 and the other associated OA decided on 15.02.2023. He further clarifies that the relief as sought for in para 8 in the present OA is also identical to the previous one.
3O.A. No. 1452/2017 Item No. 18 (C-5)
4. Learned counsel for the respondent confirms that these OAs bear a close similarity to aforementioned OAs.
5. We have carefully gone through the contents of all these OAs and are in agreement with the learned counsel for the parties that there is a striking resemblance in the facts and the issues at stake. The judgement is dated 15.02.2023 and is a recent one. There have been no subsequent developments since then which could be a reason before us to hold a divergent view.
6. Therefore, it is our considered view that the present OA should also be decided on the analogy of the order passed on 15.02.2023 in the aforementioned OAs.
7. Both the learned counsel are agreeable to the same.
8. In order to obviate the possibility of any ambiguity, the order passed in OA No. 714/2017 is reproduced below :
Since the common issue of law and facts are involved, both the OAs. are heard and disposed of by way of this common order.
However, the facts in O.A. No.714/2017 are considered as lead case.
2. For the reasons mentioned in MA No. 2309/2022, filed by the applicant to take on record the relevant order/judgment on record, the same is allowed. The enclosed orders/judgments are taken on record.4 O.A. No. 1452/2017
Item No. 18 (C-5)
3. In O.A. No. 714/2017, the applicant seeks the following relief(s):
"(i) To Call the entire record of the selection process & declare the selection process is illegal on the basis of 75% question paper is out of syllabus.
(ii) To direct the respondents revised the result after deleting the out of syllabus questions, prepared a fresh result list.
(iii) Direct the respondent to appoint the applicant on the post of Laundry Operator with all consequential benefits.
(iv) To allow the OA with exemplary costs.
(v) To pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts circumstances of the case."
Whereas the applicant in O.A. No. 735/2017 is seeking appointment on the post of Cook.
4. The learned counsel for the applicants draws our attention to the order passed by Chandigarh Bench of this Tribunal in a similar O.A. No. 60/568/2017 dated 22.11.2021, whereby this Tribunal allowed the O.A. with the following directions:
"19. The fixing of minimum qualifying marks in any competitive examination is not only required to be made known in advance to the candidates. It is equally important for the paper setters and examiners to know in advance that there is a certain minimum qualifying standard fixed for the examination so that they are able to decide the level of difficulty and syllabus for the examination, keeping this in view.
20. In the present case the minimum qualifying standards have been fixed by the respondents seven months after the declaration of the results of the examination. The OM notifying these minimum qualifying marks does not stipulate that these would be applies retrospectively for the 5 O.A. No. 1452/2017 Item No. 18 (C-5) examinations already conducted and completed in the past. In any case, retrospective application of such a criterion, as has been done in the present case, would be legally untenable.
21. Keeping the above in view, the present OA, having merit, deserves to be allowed.
22. Accordingly, the OA is allowed. The respondents are directed to consider the case of applicants on the basis of the marks obtained by them in the combined merit list of all candidates for the posts of Laundry Operator, Nursing Orderly and Cook Mate. The respondents are further directed to verify the documents and after scrutiny of documents, if the applicants are found to be eligible, to issue appointment letters to the applicants on their respective posts as per their merit, without taking into consideration the criteria of category wise minimum qualifying marks/Benchmark."
5. The said matter was taken up by the respondents before the Hon'ble High Court of Punjab and Haryana at Chandigarh by filing CWP No. 12722 of 2022, which was dismissed by the Hon'ble High Court vide judgment dated 02.06.2022, inter alia holding as under:
"Challenge in the present writ petition filed under Articles 226 and 227 of the Constitution of India is to the order dated 22.11.2021 (Annexure P-1) passed by the Central Administrative Tribunal, Chandigarh Bench (in short 'the Tribunal') wherein, the original application of the private respondents was allowed. Directions were accordingly issued to consider the case of the applicants on the basis of marks obtained by them in the combined merit list of all candidates for the post of Laundary Operator, Nursing Orderly and Cook Mate. Resultantly, directions were issued that the documents be verified and if the applicants are found eligible, to issue appointment letters to them on their respective posts as per their merit without taking into consideration the criteria of category wise minimum qualifying marks/bench mark. Challenge has also been raised to the order passed in review application which was dismissed as withdrawn on 10.02.2022 (Annexure P-6) which only persuades us to the extent that the limitation has only been extended by virtue of the same and otherwise the litigation had become final inter se the parties.
The Tribunal as such while issuing necessary directions came to the conclusion that the selection process having been deemed to have been initiated on the issuance of the advertisement which indicated the mode of selection for the 6 O.A. No. 1452/2017 Item No. 18 (C-5) posts on the basis of written examination had never given any condition regarding the discretion of the authorities to fix any minimum qualifying marks to be obtained in such examination. The same had been mentioned in the notice dated 20.08.2015 (Annexure R-1) that there was a discretion as such with the authorities to fix such marks, however, in the subsequent notice dated 08.03.2016 (Annexure A-2), there was no such stipulation. The minimum qualifying marks had been only notified on 02.01.2017 after the declaration of the result on 21.06.2016 (Annexure A-4). Resultantly, it was held that the written examination was held in March, 2016 and the result was declared in June, 2016, well before the date of notifying the criteria of minimum qualifying standards in January, 2017. The right of the respondents to fix the minimum qualifying criteria was doubted at that stage and it was held that the candidates should have been made known the said fact before the initiation of the selection process. Reasoning was also given that the fixing of minimum qualifying marks in the competitive examination is not only required to be known in advance to the candidates but it is important for the paper setters and the examiners also to know about the minimum qualifying standards fixed to decide the level of difficulty and syllabus for the examination. Resultantly, keeping in view the fact that the criteria of minimum qualifying standards had been fixed 7 months after the declaration of the results, the original applications were allowed.
In view of the above, we are of the considered opinion that the judgment of the Tribunal cannot be faulted with in any manner. It is apparent that the criteria has been changed to the detriment of the applicants. A perusal of the merit list which has now been placed on record for the said categories dated 08.02.2017 (Annexure A-5), would go on to show that in the said categories of Laundary Operator, Nursing Orderly and Cook Mate, no one was found qualified. It is pertinent to notice that when the result was declared, the names of the applicants Amandeep and Sunita find mention at Sr. Nos.1 and 2 for the post of Laundary Operator. Similarly, Manoj Singh's name finds mention for the post of Nursing Orderly at Sr. No.3. Veena Kumari's and Vipin Kumar's names find mention at Sr. Nos.16 and 17 for the post of Cook Mate. Thus, at an earlier point of time, they figured in the merit. On account of fixing of the minimum criteria by subsequent decision post the examination on 19.03.2016 which was done on 02.01.2017 whereby the bench mark was fixed at 45% and 35% for general and reserved categories, the cut off has been prescribed. It is apparent that the same has been done once the selection process had started and the rules of game have been changed, which is not permissible.
The argument raised as such that on 20.08.2015 the same had been notified as such which was prior to the examination is without any basis. A perusal of the said advertisement which was issued would go on to show that it only gave a discretion to fix the minimum qualifying marks out of the total 125 marks but never prescribed the cut off as 7 O.A. No. 1452/2017 Item No. 18 (C-5) such. The same was in the form of a corrigendum in pursuance of the original advertisement dated 07.12.2012.
Thus, even before the examination, the criteria as such prescribing the percentage of cut off was never fixed and, therefore, the applicants figured in merit, as noticed earlier and have been prejudiced. A perusal of the advertisement would go on to show that the written examination was the criteria to select and on 20.08.2015, the public notice which has now been relied upon, the number of marks was quantified at 125 which was to be considered for the final selection on the basis of the performance in the written examination. Vide notice dated 08.03.2016 (Annexure A-2), the examination was notified for 19.03.2016 and in the same notice the mention was made of 125 marks and that there would be negative marking also. The relevant portion reads thus:-
The SCHEME OF EXAMINATION advertised earlier has been modified as under:-
Type of Duration of Syllabus Remarks
Examination Examination
Written 02 Hours I. 100 Questions The questions will be
Examination (100 marks) will set Bilingual (i.e.
(125 Marks - be based on English and Hindi
Multiple Technical language)
choice professional/
objective type Subject/Post & The maximum marks
paper) will be 125
II. 25 (25 Marks)
Questions on The level of difficulty
Aptitude / will be as the
General educational
Awareness/ qualification of the
General post. The questions on
Intelligence/ Arithmetic Ability will
Arithmetic Ability be of 10th Standard Level.
There will be negative
marking at the rate of
0.25 marks to be
deducted for every
wrong answer to
eliminate the element
of chance.
ESIC reserve the right
to introduce additional
stage of examination
which would be
notified at suitable
time, if considered
necessary.
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O.A. No. 1452/2017
Item No. 18 (C-5)
Note- The Examination will be conducted in Single Stage consisting of Online Examination.
The mode of selection was also prescribed that it was on account of qualifying in the online examination against the vacancies advertised which was to be considered for final selection on the basis of the performance in the online examination. The same reads thus:-
"The candidates qualifying in Online Examination against the vacancies advertised by the respective Nodal Offices of the region shall be considered for final selection on the basis of their performance in the Online Examination"
Thus, apparently till that point of time, there was no criteria which was prescribed which fixed the percentage of the cut off. On the basis of the said, the candidates had figured in the merit list, as noticed above when the result was declared on 21.06.2016 (Annexure A-4). A subsequent decision was taken on 02.01.2017 (Annexure A-6) to their detriment, which also in our opinion, does not specify that it was qua the examination which had already taken place. The Tribunal was thus well justified in issuing the necessary directions by coming to the conclusion that the order dated 02.01.2017 could not operate with retrospective effect.
We have also examined the said order and the same does not as such find any mention that the same is to be applied retrospectively and, therefore, we are of the considered opinion that by prescribing the minimum qualifying bench marks, which was between 30% to 45% for different categories, the private respondents have been prejudiced.
Reliance can be placed upon the judgment of the Apex Court in K. Manjusree vs. State of A.P. and another, 2008 (2) SCT 6 wherein, the power of the Selection Committee to prescribe the minimum marks for interview was upheld but it was held that it could not be done after the commencement of the selection process on the principle that the rules of game cannot be changed once the game has started. The candidate was an applicant for the post of Additional District Judge and whose name was in the first list. On account of the change in the criteria, the petitioner therein had been left out. The facts would apply on all four corners and, therefore, keeping in view the above principles, we do not find that the Tribunal has erred in any manner in issuing the necessary directions.
Accordingly, the writ petition stands dismissed in limine."
9O.A. No. 1452/2017 Item No. 18 (C-5)
6. In view of the aforesaid judgments, the learned counsel for the applicants prays that the similar relief be granted to the applicants herein also.
7. Per contra, learned counsel for respondents - ESIC would contend that the contention of the learned counsel for the applicants that the criteria was changed, is not correct inasmuch as no criteria had been prescribed at the time of initiation of the selection. He draws our attention to para G, i.e. Mode of Selection, of Annexure A/1, which reads as under:
"G. MODE OF SELECTION The candidates qualifying in Written Examination (Out of total 125 marks) shall be considered for final selection on the basis of their performance in Written Examination (Out of total 125 marks).
ESIC shall have the discretion to fix minimum Qualifying Marks in the Written Examination (Out of total 125 marks)."
In other words, when the selection was initiated, the respondents were not aware as to what would be the cut off for selection and as per the Advertisement, the respondents have reserved their right to prescribe the mode of selection at a later date, which was decided vide letter dated 02.01.2017, which reads as under:
"EMPLOYEES' STATE INSURANCE CORPORATION PANCHDEEP BHAWAN, C.I.G. MARG, NEW DELHI-110002. www.esic.nic.in No. A-12/16/6/2013-Exam Dated: 2 January, 2017 OFFICE MEMORANDUM The Director General, as per directions of Chairman, ESI Corporation, has approved the following category-wise Minimum Qualifying Marks/Qualifying Standards to be 10 O.A. No. 1452/2017 Item No. 18 (C-5) followed in the Written Examination for recruitment in different Ministerial, Medical Nursing & Paramedical and Technical Cadres etc. as under:
Category Minimum
Qualifying
Marks/
Benchmark
UR 45%
OBC 30%
SC. ST & Ex- 35%
Servicemen
PWD-Person 40%
with
Disabilities
All the Appointing Authorities in ESI Corporation are hereby directed that the above Minimum Qualifying Marks/Qualifying Standard must be followed in the Written Examination for recruitment in different Ministerial, Medical, Nursing & Paramedical and Technical Cadres etc. (RAKESH KUMAR) DY. DIRECTOR (RECTT.) To,
01. All Regional Directors, Regional Offices, ESIC.
02. All Director In-charge/Joint Director In-charge, Sub Regional Offices, ESIC
03. All Medical Superintendents, ESIC Hospitals, ESIC
04. Director (Medical) Delhi/NTA, New Delhi/ESIC PGIMSRs/ESIC Medical Colleges/ESIC Dental College, Rohini, New Delhi.
05. All the Branches of ESIC, Hqrs. Office, New Delhi
06. Website Content Manager for uploading on ESIC website Therefore, they decided the above criteria after they had already declared the select list.
8. In support of his averments, the learned counsel for the respondents draws our attention to para 6 of the counter affidavit, which reads as under:
"6. The proposal for fixing of Minimum Qualifying Marks/Qualifying Standard under different categories was sent to Ministry of Labour, Govt. of India in the month of June, 2016. The issue was examined by the Ministry of Labour & Employment, Govt. of India. As per directions of Chairman, ESI Corporation (Hon'ble Minister, Labour & Employment, Govt. of India), the 11 O.A. No. 1452/2017 Item No. 18 (C-5) Minimum Qualifying Marks/ Qualifying Standard under different categories were fixed vide O.M. dated 02.01.2017 as under:
Category Minimum
Qualifying
Marks/
Benchmark
UR 45%
OBC 30%
SC. ST & Ex- 35%
Servicemen
PWD-Person 40%
with
Disabilities
Copy of the OM dated 02.01.2017 is enclosed herewith as Annexure R-4.
9. In para 7 of the counter affidavit, the respondents have further contended that the selection for the post of Laundry Operator was made on the basis of performance of the candidates in the Computer Based Examination and only those candidates who had qualified the examination were considered for selection. So far as fixation of benchmark is concerned, it is the prerogative of the concerned department to fix the qualifying marks for different categories with regard to technical and professional requirement for the post. A concise decision was taken by ESIC in consultation with Ministry of Labour & Employment, Govt. of India to fix standards for the purpose of selection for different categories. Fixation of such a benchmark is permissible in law and it is not a case of changing the rules of game. There is no change in the criteria of selection for the post of Laundry Operators. The intention and objective of the ESIC in fixing minimum qualifying marks for different categories was to get more meritorious candidates and to have best hands for different posts in order to have an efficient work force. 12 O.A. No. 1452/2017 Item No. 18 (C-5)
10. After hearing both the learned counsel at length, we find that:
(i) As per the statement of the learned counsel for the respondents, the selection was initiated without even deciding the minimum qualifying marks.
(ii) The result was declared on 21.06.2016 and the criteria for deciding the eligibility/minimum qualifying marks for passing the exam was decided much later, i.e., on 02.01.2017. The respondents have retrospectively applied this criteria to the result, which was declared in the month of June, 2016.
(iii) It is not understood as to how the respondents initiated a selection without even deciding the minimum pass percentage.
Moreover, how is it possible that the result was declared in June, 2016 when there was no minimum qualifying marks prescribed by the respondents at that time, which was decided much later in January, 2017, as has already been brought out in the judgment passed by Chandigarh Bench of this Tribunal in O.A. No. 60/00568/2017 dated 22.11.2021, upheld by the Hon'ble High Court Punjab and Haryana at Chandigarh in CWP No. 12722 of 2022 vide judgment dated 02.06.2022.
(iv) Vide Memorandum dated 02.09.2022, offer of appointment was issued in favour of one Ms. Sunita, W/o Shri Rajat Kumar (applicant No.2 in O.A. No. 568/2017) in compliance of the order passed by Chandigarh Bench of this Tribunal.
13O.A. No. 1452/2017 Item No. 18 (C-5)
11. In the conspectus of the case in hand, both the O.As. are allowed and the respondents are directed to consider the case of the applicants on the basis of the marks obtained by them in the combined merit list of all candidates for the posts of Laundry Operator, Nursing Orderly and Cook Mate. The respondents are further directed to verify the documents and after scrutiny of documents, if the applicants are found to be eligible and suitable, to issue appointment letters to the applicants on their respective posts as per their merit, without taking into consideration the criteria of category wise minimum qualifying marks/Benchmark decided after the declaration of the result and applied retrospectively. In case the applicants are found to be eligible and suitable, they would be entitled to all consequential benefits on a notional basis.
12. The entire exercise shall be completed by the respondents within a period of four weeks from the date of receipt of a certified copy of this order.
13. No order as to costs."
9. Accordingly, the present OA is also disposed of in the light of the directions given in para 11 of the above quoted order. To clarify, the competent authority amongst the respondents is directed to decide the case of the applicant on the basis of marks obtained by him in the combined merit list of all the candidates for the post of Laundry 14 O.A. No. 1452/2017 Item No. 18 (C-5) Operator. This would, of course, be subject to the verification, after scrutiny, of the documents to ascertain the eligibility and suitability of the applicant in accordance with the rules. However, the criteria of category wise minimum qualifying marks/ benchmark, shall not be applied prospectively and shall not be taken into consideration.
10. After such an exercise, if the applicants are considered eligible for appointment, such appointment shall be with effect from the date other candidates pursuant to this examination have been appointed. The resultant consequential benefits shall also be awarded to them on notional basis.
11. The directions contained herein above shall be given effect to as expeditiously as possible, certainly not later than a period of 4 weeks' from the date of receipt of a certified copy of this order.
There shall be no orders as to costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/NISHA/