Central Administrative Tribunal - Delhi
Varsha Punhani vs M/O Industry on 27 November, 2024
1
Item No. 19(C-3)
O.A. No.2264/2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2264/2018
M.A. No.742/2013
Order reserved on : 08.11.2024
Order pronounced on : 27.11.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Varsha Punhani,
Age : 49 years,
Status : Group-A Officer
Resident of:
A-193, Park Place,
Sector-54,
Gurgaon-122011
...Applicant
(By Advocates :Mr. Raj Shekhar Rao, Senior Advocate
assisted by Mr. Prateek Gupta, Mr. Harshil Wason
and Ms. Jyotsna Pushi )
VERSUS
1. Union of India
Through :
Secretary,
Ministry of Heavy Industries & Public Enterprises,
Block No.14, CGO Complex,
Lodhi Road,
New Delhi-110003.
2. Housing and Urban Development Corpn. Ltd.,
Through :
The Sr. Executive Director (Personnel),
HUDCO Bhawan,
2
Item No. 19(C-3)
O.A. No.2264/2018
Core 7-A,
India Habitat Centre,
Lodhi Road, New Delhi-110003.
3. Secretary,
Ministry of Housing and Urban Affairs,
Nirman Bhawan, New Delhi-110001.
4. Mrs. Radha Roy,
(residential address not known)
5. Shri P. Venkateshwar Reddy
(residential address not known)
6. Shri S. Thangaraju
(residential address not known)
7. Shri S. Gurudatta,
(residential address not known)
8. Shri D. Ravishankar,
(residential address not known)
...respondents
(By Advocates : Shri Mr. Shashank Bajpai for R-2, Mr.
Saurav Sharma for Mr. GS Virk for R-1&3 and Mr.
Nitin Dahiya, Mr. Sushant Kumar and Ms. Deepika
Dahiya for R-7&8.
None for remaining private respondents)
3
Item No. 19(C-3)
O.A. No.2264/2018
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The brief history and background of the case as narrated by the learned counsel for the applicant is that the instant O.A. was filed in the year 2018, the O.A. was allowed by the Order dated 10.08.2023, with a direction to the respondents to carry out fresh exercise of considering promotions to the post of General Manager after making appropriate amendment in the selection/promotion criteria by ensuring that the same is done on the basis of objective parameters and in accordance with the guidelines on the subject.
2. The respondents assailed the order dated 10.08.2023 before the Hon'ble High Court of Delhi by way of WP(C) No. 11902/2023, wherein the Hon'ble High Court of Delhi, while disposing of the Writ Petition passed the following directions on 05.01.2024:-
"6. We, therefore, have no hesitation in holding that the learned Tribunal has erred in setting aside the selection criteria. The impugned order dated 10.08.2023 is, 4 Item No. 19(C-3) O.A. No.2264/2018 accordingly, set aside. However, taking into account the admitted position that the respondent no.1 had before the learned Tribunal, raised various other grounds assailing the selection process, which grounds have not been dealt with by the learned Tribunal, we are of the view that the respondent no. 1 should be granted an opportunity to urge all other grounds as had been raised before the learned Tribunal.
7. In the light of the aforesaid, the writ petitions are allowed by setting aside the order dated 10.08.2023 and remanding the matter to the learned Tribunal for fresh adjudication of the O.A. on all grounds raised by the respondent no. 1. Taking into account that the pleadings in the matter are already complete and the selection process by which the respondent no. 1 is aggrieved pertains to year 2017, the learned Tribunal is requested to make an endeavour to decide the O.A. within a period of six (06) months from today.
8. The writ petitions along with all pending applications stand disposed of in the aforesaid terms.
9. The next date of hearing, i.e., 25.01.2024, fixed in W.P.(C) 11902/2023 stands cancelled."
3. Accordingly, the O.A. was listed for hearing before the Tribunal on 05.02.2024. It was listed on subsequent dates and finally heard and reserved for orders on 08.11.2024. Learned counsel for the parties 5 Item No. 19(C-3) O.A. No.2264/2018 confirm that the facts recorded in the order dated 10.08.2023 passed by the Tribunal can be relied upon, for deciding the instant OA.
4. Brief facts of the case as enunciated by the applicant in this OA, and as explained by her learned counsel are that the applicant along with others was considered for promotion as General Manager but she was denied the same while four of her juniors (respondents 4 to 7) were promoted vide the impugned order dated 22.12.2017. It is submitted that subsequently one more candidate, namely Shri D. Ravishankar (Respondent 8), who too is junior to the applicant has also been promoted illegally as General Manager; his promotion order has neither been put on website nor made available to the applicant otherwise. Thereafter, the applicant preferred a representation dated 02.01.2018 submitting that if the seniority and laid down criteria as per the HUDCO Promotion Rules were followed in an objective manner, she would have been one of the officers to be promoted. However, when the same was not decided by the respondents, the applicant filed OA No. 772/2018 which was disposed on 16.02.2018 with a direction to the respondents to decide the pending representation of 6 Item No. 19(C-3) O.A. No.2264/2018 the applicant. In compliance with the aforesaid order of the Tribunal, the respondents passed an order dated 15.03.2018 rejecting the said representation.
5. The learned counsel for the applicant has raised the following grounds which have been recorded in the order dated 10.08.2023. The same read as under :-
(a) It is submitted that the respondent (HUDCO) manipulated the selection process (Interview) in a manner that gave preference to the juniors as the interview marks were awarded in a malafide manner, i.e. inserted later to favour the preferred candidates, junior to the applicant. Moreover, in excess of the available vacancies, ad hoc promotions were granted to her juniors. It is also contended that the respondents ignored the 27 years of service rendered by the applicant as also her obtaining full marks in experience and APAR(s) parameters. Even though she obtained the cut-off and was recommended for promotion, the respondents deliberately gave her lesser marks in the interview. Since the applicant had obtained more than cutoff marks, i.e. 23.5 and was recommended by the DPC, there was no justifiable reason to deny her promotion. The applicant has 7 Item No. 19(C-3) O.A. No.2264/2018 alleged that the total marks were perhaps pre-decided and the interview marks inserted later in view of the fact that more than 80% of the candidates, who scored less marks in the parameters of APAR + seniority + field experience were given higher marks in the interview which is both strange and abnormal; it reflects that the interview was probably manipulated.
Curiously, those who got higher marks in the APAR + seniority + field experience like the applicant who scored full marks, i.e. 20/20, were given less marks in the interview. It is alleged that the selection process itself is vitiated as the marks fixed for interview are more than 25% which is illegal and in contravention of the law held by the Hon‟ble Supreme Court in Munindra Kumar & Ors. Vs. Rajiv Govil & Ors. [JT 1991(2) 537]; hence it is liable to be quashed.
(b) Learned counsel for the applicant has submitted that even though Rule 16.1 of the HUDCO R&P Rules provide for a composite method of evaluation, the interpretation of this rule cannot be misconstrued to justify a junior stealing march over the senior by scoring more marks in the subjective criterion of interview despite having less experience and lower grading. She argues that the said Rule nowhere 8 Item No. 19(C-3) O.A. No.2264/2018 provides that seniority should be ignored; such an interpretation would have a demoralizing effect causing frustration in the organization. Relevant extract of the Rule 16.1 is reproduced below:-
"16.1 Promotions from E-5 level (Rs.32900- 3%-58000) and above shall be by selection on the basis of merit and shall be with prospective effect.
Promotion to the level of General Manager, Executive Director and Sr. ED will be as under The composite evaluation system will have following three components a. APAR b. Weightage for field experience c. Interview score Component Maximum Score APAR* 24 Field 02 Experience@ Interview 14 Total 40 * APAR Score of maximum 24 marks will be on the basis of best four APARs of the eligible period. @ For field experience of less than 2 years, 1 mark will be awarded and for field experience of 2 years & more, 2 marks will be awarded The overall cutoff score will be 31 marks 9 Item No. 19(C-3) O.A. No.2264/2018 In respect of promotion to the executives working in Official language, Secretarial, Company Secretary cadres/wings etc the CMD is authorized to decide the criteria in view of lack of avenues/opportunities of field postings Minutes to be finalized on the date of interview itself"
However, the evaluation criteria in terms of weightage were amended vide OM dated 31.01.2017 as under:-
"Promotion to the level of General Manager will be as under
The composite evaluation system will have following three components a. APAR Score b. Weightage for field experience c. Interview score Component Maximum Score APAR*+Seniority** 18 Field Experience@ 2 Interview 10 Total 30 * APAR Score of maximum 18 marks will be on the basis of best three APARs in the grade (in case the employee already has 18 marks on the basis of best 3 APARs no additional marks for seniority will be given) ** Half mark (1/2) for every completed year of service beyond 3 years upto a maximum of 2 marks (Therefore no marks will be given for service beyond 7 years in E 6 scale) 10 Item No. 19(C-3) O.A. No.2264/2018 @ For field experience of less than 2 years 1 mark will be awarded and for field experience of 2 years & more 2 marks will be awarded.
The minimum APAR score required for promotion shall be 15 The overall cut off score will be 23 marks Criteria for promotion to Executive Director and Sr. Executive Director will remain unchanged."
(c) Learned counsel pointed out to the specific amendment in the evaluation criteria stating that the component of APAR was amended to include seniority and the amended criteria reads as: "APAR + Seniority". She argued that this amendment makes it abundantly clear that seniority was necessarily to be one of the criterion to be considered while deciding the eligibility and fitness of a person for promotion. The learned counsel has relied upon the judgment of the Hon'ble Supreme Court in Haryana State Warehousing Corporation Vs. Jagat Ram & Anr. [(2011)3 SCC 422] to contend that senior cannot be denied promotion only on the ground of a superior assessment made in favour of a particular employee.
(d) It is also argued that 44 candidates were interviewed on 16.11.2017. The interview ended in a 11 Item No. 19(C-3) O.A. No.2264/2018 span of 2:30 hours, meaning thereby, all the candidates were interviewed within this short span, roughly allowing 3 minutes time to each candidate. It is unreasonable to expect a fair and objective evaluation of a candidate's merit in such a short time, learned counsel argued. In this regard, the applicant has placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Miss Arti Sapru & Ors. v. State of J&K and Ors., (1981) 2 SCC 484, wherein the Court advised the State to ensure that Selection Committee take care to devote sufficient time to the oral interview of individual candidates.
6. Learned counsel for the applicant in continuation to the arguments reproduced hereinabove, has submitted as under :-
i) The Housing and Urban Development Corporation (HUDCO) had manipulated the selection process in a manner, that it gave preference to the juniors with respect to the marks in the interview. The marks to be awarded to a candidate comprise of marks for APARs/ACRs, field experience and interview taking it to a total of 30. The DPC/Interview Board while assessing the personality of the applicant had 12 Item No. 19(C-3) O.A. No.2264/2018 manipulated the interview marks by reverse engineering. To clarify, the final marks were first written, which shows that decision had already been taken to promote certain candidates and then marks awarded in the interview were inserted to balance the outcome already decided, so as to render the applicant ineligible. Therefore, the interview has been conducted in a malafide manner, only to favour certain candidates, who were junior to the applicant, solely on account of a subjective assessment made in the interview, which was unfair and arbitrary in nature.
ii). In excess of the vacancies available, ad-hoc promotions were extended to the juniors. To elaborate, the applicant had obtained 23.5/30 marks by computing the total of APAR, Seniority, Field Experience and Interview as against the cut off of 23 marks. The applicant was recommended by the DPC for promotion, however, was denied the same by the competent authority. The fact that the marks of the interview were inserted at a later stage is supported by the fact that 80% of the candidates who secured less marks in the APAR+ Seniority+ Field Experience were 13 Item No. 19(C-3) O.A. No.2264/2018 given higher marks in the interview, which clearly reflects that the interview was manipulated. The candidates who secured higher marks in the APAR+ Seniority+ Field Experience just like the applicant, who secured 20/20, were awarded less marks in the interview only to render them ineligible.
iii. He counsel for the applicant reiterated that a specific amendment in the evaluation criteria was made to include Seniority and now it is read as APAR + Seniority + Field Experience. Originally, 20 marks were allocated to the APAR and Field Experience, thereafter Seniority was added to arrive at a maximum of 20 marks, as it was considered necessary, while determining eligibility and fitness of the applicant.
iv) The composition of the DPC was not as per the HUDCO Recruitment Rules, 2011. The DPC/Interview Board comprised of 7 members, as against 6 Members and two of the Members of the DPC/Interview Board were candidates for promotion themselves. The interview was held without any inclusion of a woman Member, which was the requirement as per the DOP&T OM dated 13.12.2014, as 12 women candidates were in the select list which is more than 14 Item No. 19(C-3) O.A. No.2264/2018 the 25% of the total candidates to be interviewed. One Mr. Chetan Vaidya, who was an independent Director, expert was directly involved in the affairs of HUDCO.
v). In Annexure R1 to the rejoinder, the minutes of the DPC held on 16.11.2017 have been annexed. The minutes indicate that the marks awarded to each of the candidates excluding the interview were placed before the DPC at the time of interview. To clarify, the marks obtained by each of the candidates out of 20 for APAR, Seniority and Field Experience have already been typed and placed before the DPC and as a result, these marks have played in the minds of DPC/Interview Board while awarding marks for interview. To illustrate, one of the candidates, namely, Dr. Manika Negi (S.No. 5), has secured 18 marks in the Seniority + APAR category and as she did not have the field experience of two years, she was awarded 0/2 marks in the said category and 9 marks in the interview out of 10. Therefore, the way these marks were awarded by the DPC for interview are disproportionate, on the contrary, the candidate placed at serial number 30, namely, Mr. Rajesh 15 Item No. 19(C-3) O.A. No.2264/2018 Srivastava has been awarded 19.5 marks in the APAR and Field Experience category, while 3.5 marks have been given to him in the interview. Moreover, the total marks awarded to him comes to 23 (19.5+3.5) while, the DPC has recorded his marks as 23.5.
vi). The minutes of the meeting have been signed by the Members of the DPC/Interview Board, without going into the details or verifying them. This goes on to show that they have conducted the DPC/Interview in an arbitrary manner with an intention to promote the ineligible persons.
vii). The name of the applicant is placed at serial number 13 and she has been given 20/20 in the APAR+ Seniority+ Field Experience category and 3.5/10 in the interview, only to deny her promotion. There are as many as 16 candidates who have been given less than 20 marks in the pre-interview category and each of them have been given more than six marks in the interview. Curiously, the candidates who scored 20/20 in the pre-interview category have been given less than six marks in the interview. It is also stated that each of the candidates called for personal interview has been recommended by the DPC. 16 Item No. 19(C-3) O.A. No.2264/2018
viii). The interview cannot be left to the subjectivity of the panel interviewing the candidates and in order to exclude any arbitrariness, the Hon'ble Apex Court in Ajay Hasia and Ors. Vs Khalid Mujib Sehravardi and Others (1981) 1 SCC 722 decided on 13.11.1980 and Munindra Kumar & Ors. Vs. Rajiv Govil andl Ors. (1991) 3 SCC 368 decided on 10.05.1991 has held that not more than 15% marks should be awarded to the interview while in the present facts 33.33% marks have been allocated to the interview. Relevant para 19 of the aforesaid judgment in Ajay Hasia is reproduced hereinbelow :-
"So far as the third ground of challenge is concerned, we do not think it can be dismissed as unsubstantial. The argument of the petitioners under this head of challenge was that even if oral interview may be regarded in principle as a valid test for selection of candidates for admission to a college, it was in the present case arbitrary and unreasonable since the marks allocated for the oral interview were very much on the higher side as compared with the marks allocated for the written test. The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3% of the total number of marks taken into account for the purpose of making the selection. This, contended the petitioners, was beyond all reasonable proportion and rendered the selection of the candidates arbitrary and 17 Item No. 19(C-3) O.A. No.2264/2018 violative of the equality clause of the Constitution. Now there can be no doubt that, 107 having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It may be pointed out that even in Peeriakaruppan's case (supra), where 75 marks out of a total of 275 marks were allocated for the oral interview, this Court observed that the marks allocated for interview were on the high-side. This Court also observed in Miss Nishi Maghu's case (supra):
"Reserving 50 marks for interview out of a total of 150... does seem excessive, especially when the time spent was not more than 4 minutes on each candidate".
There can be no doubt that allocating 33 1/3 of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission 18 Item No. 19(C-3) O.A. No.2264/2018 procedure cannot be sustained. But we do not think we would be justified in the exercise of our discretion in setting aside the selections made for the academic year 1979-80 after the lapse of a period of about 18 months, since to do so would be to cause immense hardship to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and, moreover, even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979-80, which has run out long since. It is true there is an allegation of mala fides against the Committee which interviewed the candidates and we may concede that if this allegation were established, we might have been inclined to interfere with the selections even after the lapse of a period of 18 months, because the writ petitions were filed as early as October- November, 1979 and merely because the Court could not take-up the hearing of the writ petitions for such a long time should be no ground for denying relief to the petitioners, if they are otherwise so entitled. But we do not think that on the material placed before us we can 108 sustain the allegation of mala fides against the Committee. It is true, and this is a rather disturbing feature of the present cases, that a large number of successful candidates succeeded in obtaining admission to the college by virtue of very high marks obtained by them at the viva voce examination tilted the balance in their favour, though the marks secured by them at the qualifying examination were much less than those obtained by the petitioners and even in the written test, they had fared much worse than the petitioners. It is clear from the chart submitted to us on behalf of the 19 Item No. 19(C-3) O.A. No.2264/2018 petitioners that the marks awarded at the interview are by and large in inverse proportion to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test. The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established. We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. We cannot, however, fail to mention that this is a matter which required to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the college, must take care to see that proper persons are appointed on the interviewing committees and there is no executive interference with their decision- making process. We may also caution the authorities that though, in the present case, for reasons which we have already given, we are not interfering with the selection for the academic year 1979- 80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid." 20 Item No. 19(C-3) O.A. No.2264/2018 He further relied on para 9 of the judgment in Munindra Kumar (supra), which reads as under :-
"9. The question now which calls for our consideration is as to what percentage of marks may be considered as reasonable for group discussion. The purpose of group discussion is to assess the qualities mental alertness, manner of asserting oneself, showing regard for opinion of others, ability to discuss a subject without losing temper and his initiative, that and self confidence when confronted with a problem facing a large number of people. However, the group discussion as one of the methods for assessing the suitability of a candidate for the post of Assitant Engineer has not been kept by any other State Electricity Boards in India except Andhra Pradesh and Uttar Pradesh. In group discussion the examiner observes the candidates from behind and makes his own assessment and as such the allotment of marks for group discussion cannot be equated with the marks allotted for interview. In the interview every candidate gets a chance and the members of the interviewing board can in a better manner judge the intelligence, ability and personality of the candidate to determine his suitability for the job. The marks for group discussion cannot be kept at an equal pedestal with the interview. Thus in our view as already held in Mohinder Sain Garg's case (supra) 15 per cent marks in all are to be kept for interview, and if the rule making authorities want to keep group discussion also as one of the modes of selection them marks for interview and group discussion should not exceed 10 per cent 5 per cent respectively of the total marks."21
Item No. 19(C-3) O.A. No.2264/2018
ix). After calculating the composite score, the DPC has recommended all the 44 candidates against the 13 vacancies except those two candidates, whose result was kept in a sealed cover. The applicant's composite score placed her at serial number 17 in the merit list prepared after the interview, though she was initially at serial number 13, in terms of her seniority.
x). The Members of the DPC had vested interest in the selection process as two of the members, namely, Mr. Prem Nawaz and Mr. Rajinder Paul who were serving as Executive Director (HR) and Executive Director (Finance) respectively were Members of the DPC/Interview Board as well. These two were participating in the selection process for their promotion to the post of Senior Executive Director and were, therefore, under scrutiny. Both of them participated in the interview process for their promotion which was conducted on 15.11.2017, i.e. a day prior to the interview of the applicant for promotion to the post of General Manager. Therefore, the members who were being considered themselves for promotion by a committee headed by the same personnel (CMD) casts significant doubt on the 22 Item No. 19(C-3) O.A. No.2264/2018 capability of such Members to take independent decision during the interview. This raises a question on the credibility of the DPC Members to act independently.
xi). The DOPT OM dated 13.02.2014 (Page 45), mandates that while convening a DPC, it shall be mandatory to have one Member each belonging to SC/ST/OBC category and the minority Community and additionally one of the Members should be a lady Member from either of the category/community. These conditions have not been met in the present case. The composition of the DPC makes it clear that in the absence of a lady member, DPC composition was bad in law.
xii). He drew strength from the decision of the Hon'ble High Court of Delhi in Ravi Versus Union of India & Ors. Writ Petition No. WPC No. 5635/2021 dated 04.10.2021 and submitted that it is a settled position of law that the decision of a selection committee can be interfered with if there is illegality or patent material irregularity in the constitution of the Committee or its procedure or proved mala fide 23 Item No. 19(C-3) O.A. No.2264/2018 affecting the selection. Relevant portion of the said judgement is reproduced hereinbelow :-
"114. Hence, it must be held that the process of selection can be challenged if the same is contrary to statutory / legislative scheme making the said process, patently illegal. Hence, this plea of Mr. Jain is liable to be rejected."
xiii). 44 candidates were interviewed in 2.5 hours assigning almost three minutes to each of the candidates. The time of 3 minutes has been declared as acutely short span of time to judge the capability of a candidate. He drew strength from the judgment of the Hon'ble Apex Court in Ajay Hasia & Ors. Versus Khalid Mujib Sehravardi & Ors. (1981) 1 SCC 722 and judgment of Hon'ble High Court in Abhimeet Sinha and Others Versus High Court of Judicature at Patna & Ors. (2024) 7 SCC 262 dated 06.05.2024. He relied upon para 20 of the judgment in Ajay Hasia (supra), which has been reproduced hereinbelow :-
"The petitioners, arguing under the last ground of challenge, urged that the oral interview as conducted in the present case was a mere pretence or farce, as it did not last for more than 2 or 3 minutes per candidate on an average and the questions which were asked 24 Item No. 19(C-3) O.A. No.2264/2018 were formal questions relating to parentage and residence of the candidate and hardly any question was asked which had relevance to assessment of the suitability of the candidate with reference to any of the four factors required to be considered by the Committee. When the time spent on each candidate was not more 2 or 3 minutes on an average, contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate. Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the college and it has been stated that each candidate was interviewed for 6 to 8 minutes and "only the relevant questions on the aforesaid subjects were asked". If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee. But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was 25 Item No. 19(C-3) O.A. No.2264/2018 interviewed for 6 to 8 minutes and only relevant questions were asked. We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors. If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary. We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979-80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observation made by us in this judgment lest they might run the risk of being struck down. We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee."26
Item No. 19(C-3) O.A. No.2264/2018 Further he relied upon para 46 and 49 of the judgment in Abhimeet Sinha (supra), which reads as under:-
"46. Since most of the High Courts were selecting candidates based only on the viva voce test without conducting the written test, the absence of transparency and objectivity in the interview process was noticed. The Commission therefore opined that accepting the viva voce as the sole selection mode could lead to arbitrariness. However, this by itself does not lend any clarity on how prescribing minimum cut- off marks for viva voce together with the written test, could possibly lead to arbitrariness in selection. In order to reduce subjectivity, the Shetty Commission in its subsequent recommendation, delineated the methodology for conducting viva voce as under:
"10.97. ....We would, therefore, like to recommend the following procedure to reduce degrees of subjectivity and arbitrariness:
(i)There shall be written examination followed by viva-voce.
(ii) Written Examination must carry 200 marks on the subject/subjects prescribed by the High Court. The paper should be of a duration of minimum two hours.
(iii) The cut off marks in the Written Examination should be 60% or corresponding grade for general candidates and 50% or corresponding grade for SC/ST candidates. Those who have secured the marks above the cut off marks shall be called for viva-voce Test.27
Item No. 19(C-3) O.A. No.2264/2018
(iv) The viva-voce Test should be in a thorough and Scientific Manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva- voce shall carry 50 marks. There shall be no cut off marks in viva-voce test.
(v) The merit list will be prepared on the basis of marks/grades obtained both in the Written Examination and viva-voce."
xxx xxx xxx
49. As rightly noted above, the English- speaking urban candidates could possibly be at an advantage compared to those from a rural background and those belonging to marginalized communities. It must however be seen that the Shetty Commission report was in the backdrop of High Courts selecting candidates simply on the basis of viva voce without conducting written test. What is also essential to note is that the Shetty Commission recommended evaluation through grades instead of numerical marks, for the selection of judicial officers, whether in written exam or viva voce. It also suggested that there must be written guidelines for assigning marks at the time of the interview."
He submitted that in view of the above decisions of the Hon'ble Apex Court and High Court, the interview would stand vitiated and the selection made on the basis of the same would be arbitrary. Besides, the constitution of the DPC was incorrect, as a lady member was not its part. The constitution of the DPC itself indicated that there was a discrimination against women which lead to unfair evaluation. 28 Item No. 19(C-3) O.A. No.2264/2018
xiv). He drew strength from the decision of the Hon'ble Apex Court in Ashok Kumar Yadav and other versus State of Haryana and Others (CA No. 10160/1983) (paras 14&20) (page 213) of the additional affidavit filed by the applicant and submitted that in order to arrive at a fair and satisfactory evaluation, the viva voce should be carried out in a thorough and scientific manner. Therefore, the duration of the interview per candidate should be anytime between 10-30 minutes. In the present facts, since the interview has been conducted for less than three minutes per candidate, a situation has arisen where undeserving candidates who have obtained less marks in the pre-interview category, have been awarded unduly high marks in the viva voce. He submitted that since the marks obtained by the candidates in the pre-interview stage were readily available before the members of the DPC/Interview Board, they had an opportunity to interpolate the marks as they were granted discretion beyond their powers. (Ashok Kumar (supra) page 235 of Additional Affidavit).
29Item No. 19(C-3) O.A. No.2264/2018
7. Pursuant to notice, the respondents have filed reply opposing the OA. Learned counsel for the official respondents submitted that during the pendency of the O.A., the applicant has been granted promotion to the post of General Manager (Project) on 15.09.2023 and hence, the O.A. has become infructuous. He submitted that the submissions made by him and recorded in paras 11 and 12 of the order dated 10.08.2023 be reiterated.
8. The respondents, in reply to the contention of the applicant that her juniors were promoted, submitted that the selection criteria for the post of General Manager (Projects) is on the basis of merit and not on seniority. It is argued that when a selection process is based on merit, all the eligible employees are assessed on the basis of their merit and not solely on their seniority. In such circumstances, an employee may be junior to another employee but having a better performance can secure a higher merit and, accordingly, get placed at a higher position in the merit list. Further, so far promotion granted to Respondent No.8 (junior to the applicant) is concerned, the said employee was promoted as 30 Item No. 19(C-3) O.A. No.2264/2018 General Manager (Projects) on 01.05.2018 against an ad hoc vacancy which arose during the validity of the selection panel.
9. The respondents also submitted that the Office orders/memorandums issued by DoPT as placed on record by the applicant are not ipso-facto applicable to a Central Public Sector Enterprise unless specifically made applicable. The HUDCO has its own recruitment/ promotion rules approved by the Board, the learned counsel submitted.
10. Mr. Nitin Dahiya, learned counsel for private respondent Nos. 7 and 8, in support of his contentions, submitted that the promotion to the post of General Manager was by selection and not on the basis of seniority. He also reiterated the submissions recorded in order original order of the Tribunal dated 10.08.2023 and submitted that the DPC was duly constituted and comprised as per the Recruitment and Promotions Rules of HUDCO; and that based on the comprehensive evaluation of all the eligible candidates, the DPC prepared a merit list. Since the respondents no. 4 to 8 had comparatively performed 31 Item No. 19(C-3) O.A. No.2264/2018 better than the applicant, they secured positions no. 7, 8, 9, 13 and 14 respectively whereas the applicant attained position at Sl.No.17. He supported the stand taken by respondent no.2 in their reply that since the applicant participated in the selection process fully knowing beforehand the R&P Rules regarding composite evaluation system having 10 points for interview out of total 30, she cannot challenge the said selection process after her participation in the same. It has been argued on their behalf that the applicant was only involved with the peripheral areas/departments of respondent organization whereas all the other respondents, i.e respondents No.4 to 8 were handling operations of respondent no.2 organization which is the core activity and sustains institutional profitability; this includes sanction, release, monitoring and recovery of loans. Thus because of their experience in handling the core activities upon which the future of HUDCO relies upon, they performed better in the interview than the applicant.
11. He submitted that appointments of the private respondents cannot be called ad hoc as the DPC was 32 Item No. 19(C-3) O.A. No.2264/2018 conducted to the post of ED(E-8)/GM(E-7) on 15.11.2017 and 16.11.2017 which includes the 'Lien Vacancies and they were duly selected on seniority cum merit basis vide DPC recommendations placed before Board on 21.12.2017 and order for appointment was issued on 22.12.2017. There were no repatriations to the lien vacancies. Thus appointment against these 'Lien Vacancies' was done in the same way as that of regular appointees, i.e. by constituting DPC, on evaluation by DPC on merits and thereafter by approval by the Board. Thus, it cannot be called as ad hoc appointment and in fact, lien vacancies are treated as clear vacancies.
12. He further submitted that they should not be made to suffer due to the lackadaisical approach of HUDCO in not conducing DPC since 2007. They informed that HUDCO, in its own past practice has been regularly promoting against lien vacancies and confirming even all ad hoc promotees irrespective of validity of DPC Panel/probation period to maintain continuity. It is submitted that repatriation of the respondents to pre-2017 stage, i.e. before DPC 2017 will be against the rights of the respondents as it will stigmatize the services of the respondents for no fault 33 Item No. 19(C-3) O.A. No.2264/2018 of theirs. It is submitted that due to the fact that they have been continuously officiating on the present post, they have gained experience and seniority over the applicant.
13. He kept on to argue that their promotions are automatically confirmed in the light of the DOPT Master Circular on Probation dated 11.03.2019 in which Para 27 clarifies that the officer will be deemed to have successfully completed probation if no order confirming, discharging or reverting the officer is issued within eight weeks after expiry of double the normal period of prescribed probation.
14. He added that the decision in Ajay Hasia (supra) relied upon by the learned counsel for the applicant may not be applicable in the present facts, as it was a case of direct recruitment, while the present facts relate to promotion. He submitted that since the Hon'ble High Court of Delhi, while deciding W.P.(C) No. 11902/2023 on 05.01.2024 conclusively held that setting aside the selection criteria by the Tribunal was rather incorrect, the selection criteria could not be put to challenge, at this stage. He added that the applicant is estopped from challenging the 34 Item No. 19(C-3) O.A. No.2264/2018 constitution of the DPC in view of the fact that mala fide has not been alleged against any Member of the DPC. Therefore, it cannot be construed that the Members have proceeded with biasness. He submitted that the applicant was in fact not appointed on adhoc basis. While relying on the previous order of the Tribunal, he submitted that the lien vacancies are clear vacancies. Learned counsel for the private respondents argued that the applicant cannot be allowed to challenge the selection process, after she has participated in the same, which has ended without extending her any promotion. He submitted that the marks were assigned by the DPC/Interview Board after assessing the work conduct and ability of the private respondents and as they were determined to be more meritorious than the applicant, they were extended the promotion. He added that the private respondents have been working on the promoted post for more than five years now and any intervention by the Tribunal, at this stage, would upset not only the promotion of private respondents but also the other candidates who have been extended promotion. 35 Item No. 19(C-3) O.A. No.2264/2018
15. In rejoinder, learned Senior Counsel for the applicant submitted that though it is correct that the applicant has been extended promotion on 15.09.2023, however, she would contest the O.A., challenging the selection process of promotion to the post of General Manager (Project) 2017, as the applicant has not been extended promotion from the appropriate date. He clarified that the applicant has not challenged the selection criteria but the selection process. He submitted that if the applicant had not participated in the selection process, she could not have challenged the selection process which was arbitrary. Learned Senior Counsel also relied upon the judgment of the Hon'ble Apex Court in Civil Appeal No.2634/2013 titled Tej Prakash Pathak & Ors. Vs. Rajasthan High Court and Ors. dated 07.11.2024, wherein it has been mentioned that 'The ideal in recruitment is to do away with unfairness.' He again drew our attention to para 4.25 of the O.A. to strengthen his arguments.
16. Heard the learned counsel for the applicant as well as the learned counsel representing official respondents No.1to3 and private respondents No.7&8. 36 Item No. 19(C-3) O.A. No.2264/2018 None represented private respondents No. 4-6. However, in view of the directions of the Hon'ble High Court of Delhi to decide the matter expeditiously, preferably within six months, with the consent of the learned counsel for the applicant, learned counsel for the official respondents and learned counsel for private respondent Nos. 7 & 8, the O.A. is being heard finally. Further, the submissions of the respondents No.4to6 as recorded in the original order of the Tribunal dated 10.08.2023 are taken into consideration and reiterated in the succeeding paras.
17. Private respondent nos. 4 to 8 submitted that the applicant in this OA has not challenged the order dated 15.03.2018 passed by the respondents whereby her pending representation, in compliance with the directions issued in OA No. 772/2018, was decided. As such, the present OA is devoid of any cause of action and merits and is liable to be dismissed in limine.
18. They have further argued that the promotion to the post of GM was by selection and not on the basis of seniority. They have also reiterated the stand taken by the respondent no.2 that the DPC was duly 37 Item No. 19(C-3) O.A. No.2264/2018 constituted and comprised as per the Recruitment and Promotions Rules of HUDCO; and that based on the comprehensive evaluation of all the eligible candidates, the DPC prepared a merit list. Since the respondents no. 4 to 8 had comparatively performed better than the applicant, they secured positions no. 7, 8, 9, 13 and 14 respectively whereas the applicant attained position no.17. They support the stand taken by respondent no.2 in their reply that since the applicant participated in the selection process fully knowing beforehand the R&P Rules regarding composite evaluation system having 10 points for interview out of total 30, she cannot challenge the said selection process after her participation in the same. It has been argued on their behalf that the applicant was only involved with the peripheral areas/departments of respondent organization whereas all the other respondents, i..e 4 to 8 were handling operations of respondent no.2 organization which is the core activity and sustains institutional profitability; this includes sanction, release, monitoring and recovery of loans. Thus because of their experience in handling the core activities upon which the future of HUDCO relies upon, these 38 Item No. 19(C-3) O.A. No.2264/2018 respondents gave valuable inputs and hence fared better in the interview than the applicant.
19. They have submitted that appointments of the private respondents cannot be called ad hoc as the DPC was conducted to the post of ED(E-8)/GM(E-7) on 15.11.2017 and 16.11.2017 which includes the 'Lien Vacancies and they were duly selected on seniority cum merit basis vide DPC recommendations placed before Board on 21.12.2017 and order for appointment was issued on 22.12.2017. There were no repatriations to the lien vacancies. Thus appointment against these 'Lien Vacancies' was done in the same way as that of regular appointees, i.e. by constituting DPC, evaluation by DPC on merits and approved by the Board. Thus, it cannot be called as ad hoc appointment and in fact, lien vacancies are treated as clear vacancies.
20. Before proceeding further, it would be worthwhile to go through the DPC minutes. The same are reproduced hereinbelow :
"MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE MEETING HELD ON 16TH November, 2017 FOR CONSIDERING PROMOTION OF JOINT GENERAL MANAGER (PROJECTS) (Pay scale ₹36600-62000) (E-6 LEVEL) TO THE POST OF GENERAL 39 Item No. 19(C-3) O.A. No.2264/2018 MANAGER(PROJECTS) (Pay scale ₹43200- 66000) (E-7 LEVEL) Present:
1.Dr. M. Ravi Kanth, CMD, HUDCO - Chairman
2.Sh. N.L. Manjoka, DCP, HUDCO - Member
3.Prof. Chetan V. Valdya, - Member Independent Director, HUDCO
4.Dr. D. Subramaniam, Sr. ED(P) - Member
5.Dr. Shailesh Kr. Agrawal, ED, BMPTC - Member (Outside expert)
6.Sh. Rajinder Paul, ED (Fin.) - Member/ Rep. Of SC/ST
7.Sh. J.Prem Nawaz, ED (HR) - Member/ Rep. of Minority
1. The Committee was informed about the rule position and the other relevant details for considering the promotion from the post of Joint General Manager (Projects) to the post of General Manager (Finance) (Annexure-A). As on the cut-off date of 31-
12-2017, there are 46 Joint General Manager(Projects) who have entered into the zone of consideration and the details are given in Annexure-B. Two eligible candidates namely Ms. Alka Aggarwal and Mrs. Shalini M Devan did not appear for Interview.
Recommendation:
2. On the basis of qualification, experience, performance in their Appraisal Reports, Interview and overall suitability, the total composite scores of the assessed officers are as under:
Sl. Name Marks* Intervi Total
No. (without ew Score
intervie Marks
w score) (Out of
10
marks)
1. SHRI SURENDRA 20.00 4.5 24.5
KUMAR
2. Ms. BEENA 20.00 8.0 28.0
PHLIPOSE
3. SHRI SR SURIN 19.00 6.0 25.0
4. MRS. GAYATRI R. 20.00 3.0 23.0
40
Item No. 19(C-3)
O.A. No.2264/2018
RAJESH
5. DR. MANIKA NEGI 18.00 9.0 27.0
6. DR. SUKANYA 20.00 6.5 26.5
GHOSH
7. MRS. ARTI TYAGI 18.00 5.5 23.5
8. SHRI RITABRATA 19.50 6.5 26.0
GHOSH
9. SHRI RAJIV 19.00 6.5 25.5
SHARMA
10. SHRI T. THOMAS 18.50 6.0 24.5
ANTONY
11. SHRI B. 20.00 5.5 25.5
SELVASUNDER
12. SHRI T.T. DINES 18.00 5.5 23.5
13. MRS.VARSHA 20.00 3.5 23.5
PUNHANI
14. SHRI AJITH KK 19.00 4.0 23.0
15. SHRI BT UMESH 20.00 3.0 23.0
16. DR. D. RAVI 18.00 6.0 24.0
SHANKAR
17. MRS. RADHA ROY 20.00 5.5 25.5
18. SHRI MURALI K 19.00 4.0 23.0
JAMI
19. SHRI S 20.00 4.5 24.5
GURUDATTA
20. SHRI ASHOK 18.00 5.0 23.0
PATEL
21. SHRI P 20.00 5.5 25.5
VENKATESHWAR
REDDY
22. SHRI S 19.00 6.5 25.5
THANGARAJU
23. MRS. PREETI 18.00 5.0 23.0
SINGH
24. MRS. VIJAYA R 20.00 3.0 23.0
VASU
25. DR. ANAND 20.00 3.0 23.0
PRAKASH TIWARI
26. SHRI 20.00 3.0 23.0
PARAMESHWARIA
H RL
27. SHRI VIRENDRA 17.00 6.0 23.0
KUMAR
28. SHRI SUNIL 18.00 5.0 23.0
TALWAR
29. SHRI KAMAL 20.00 3.0 23.0
KUMAR CHAUHAN
30. SHRI RAJESH 19.50 3.5 23.5
SRIVASTAVA
31. SHRI DEBESH 20.00 3.0 23.0
CHAKRABARTY
32. MS. TH MEERA 17.50 5.5 23.0
DEVI
33. SHRI HR 19.50 3.5 23.0
41
Item No. 19(C-3)
O.A. No.2264/2018
GAIDHANI #
34. SHRI BSA MURTHY 20.00 3.0 23.0
35. DR. RAJKUMAR 17.00 6.0 23.0
SINGH #
36. SHRI SAKET 18.00 5.0 23.0
SHRIVASTAVA
37. SHRI N. 18.00 5.0 23.0
CHANDRASEKHAR
38. SHRI P SUBHAS 19.00 4.0 23.0
REDDY
39. SHRI ANOOP SETH 20.00 3.0 23.0
40. SHRI RAJEEV 19.00 4.0 23.0
GARG
41. SHRI SK 19.00 4.0 23.0
BHATNAGAR
42. SHRI NARESH 18.00 5.0 23.0
KUMAR
43. SHRI DEEPAK 18.00 5.0 23.0
BANSAL
44. SHRI SHANUJ 20.00 3.0 23.0
GUPTA
*Includes best 3 APAR Score + Seniority Marks + Field Experience Marks. The interview marks shall be added to these marks. The cutoff after including interview marks is 23. The details are given in Annexure-B. #Vigilance clearance has not been granted.
3. Based on the total composite score achieved by the assessed officers, the following officers are recommended for promotion to the post of General Manager (Projects) in the order of the following merit:
Order Name Finding/
of Recommendation
Merit
1. Ms. Beena Recommended
Philipose
2. Dr. Manika Negi Recommended
3. Dr. Sukanya Recommended
Ghosh
4. Shri Ritabrata Recommended
Ghosh
5. Shri Rajiv Recommended
Sharma
6. Sh. B. Recommended
Selvasundar
42
Item No. 19(C-3)
O.A. No.2264/2018
7. Mrs. Radha Roy Recommended
8. Sh. P Recommended
Venkateshwar
Reddy
9. Sh. S. Recommended
Thangaraju
10. Sh. S.R. Surin Recommended
11. Sh. Surendra Recommended
Kumar
12. Sh. T. Thomas Recommended
Anthony
13. Sh. S. Gurudatta Recommended
14. Dr.D. Ravi Recommended Shankar
15. Mrs. Arti Tyagi Recommended
16. Sh. T.T.Dines Recommended
17. Mrs. Varsha Recommended Punhani
18. Sh. Rajesh Recommended Srivastava
19. Mrs. Gayatri Recommended R.Rajesh
20. Sh. Ajith K.K. Recommended
21. Sh. B.T. Umesh Recommended
22. Sh. Murali K. Recommended Jami
23. Slh. Ashok Patel Recommended
24. Mrs. Preeti Singh Recommended
25. Mrs. Vijaya R. Recommended Vasu
26. Dr. Anand Recommended Prakash Tiwari
27. Sh. Recommended Parameshwarah R.L.
28. Sh. Virendra Recommended Kumar
29. Sh. Sunil Talwar Recommended
30. Sh. Kamal Kumar Recommended Chauhan
31. Sh. Debesh Recommended Chakrabaaraty
32. Ms.T.H. Meera Recommended Devi
33. Sh. H.R. Sealed Cover Gardhani
34. Sh. B.S.A. Recommended 43 Item No. 19(C-3) O.A. No.2264/2018 Murthy
35. Dr. Rajkumar Sealed Cover Singh
36. Sh. Sakesh Recommended Shrivastava
37. Sh. N. Recommended Chandrasekhar
38. Sh. P. Subhas Recommended Reddy
39. Sh. Anoop Seth Recommended
40. Sh. Rajeev Garg Recommended
41. Sh. SK Bhatnagar Recommended
42. Sh. Naresh Recommended Kumar
43. Sh. Deepak Recommended Bansal
44. Sh. Shanuj Gupta Recommended
21. To summarise, the learned counsel for the applicant has raised the following grounds :
(i) Composition of the DPC/Interview Board consisted of 7 Members as against the prescribed number of 6 Members.
(ii) some of the Members in the DPC/Interview Board were interested Members.
(iii) A short span of 2 to 3 minutes was extended to each of the candidates for interview which is unreasonable for fair evaluation of the candidates' merit.44
Item No. 19(C-3) O.A. No.2264/2018
(iv) in excess of vacancies, the ad hoc promotions were made.
(v) Marks obtained by the candidates in pre- interview category were already placed before the DPC/Interview Board at the time of interview.
(vi) The marks allocated to the interview should not have been more than 25% of the total marks.
(vii) No lady Member was part of the DPC/Interview Board, as per the DOP&T OM dated 13.02.2014.
(viii) All the 44 candidates have been recommended against the 13 vacancies.
(ix) There is a totally error with respect to one of the candidates, namely, Mr. Rajesh Srivastava.
22. While on the other hand, learned counsel for the official respondents have contended that the selection criteria for the post of General Manager (Projects) is based on merits and not seniority. Therefore, an employee who was junior to another employee but was having better performance might have secured higher merit and accordingly, got placement in the higher position in the merit list. In the present facts, since 45 Item No. 19(C-3) O.A. No.2264/2018 the juniors of the applicant secured higher marks than her, were extended promotion. He contended that the DOP&T OMs may not be ipso-facto applicable to the Central Government Public Sector Enterprise unless they are adopted by the said Enterprise. The HUDCO has its own Recruitment Rules approved by the Recruitment Board and, therefore, the constitution of the DPC or the Members of the DPC could not be put to challenge.
23. The private respondent Nos.4to6 were not represented. Learned counsel appearing for the private respondent Nos.7&8 have primarily submitted that the HUDCO has been making promotions against the lien vacancies and confirming the adhoc promotees irrespective of the DPC panel and date of probation period to maintain continuity. The promotions to the private respondents stood confirmed in light of the Master Circular of DOP&T dated 11.03.2019, particularly, para 27 that clarifies that the officers on successful completion of probation period are deemed regularised in the promoted post if no order of confirming/discharging or reverting of offices is issued within eight weeks after expiry of double the normal period of probation prescribed. 46 Item No. 19(C-3) O.A. No.2264/2018
24. From the above, it is emerged that : (i) The DPC- cum-Interview Board consisted of seven Members; (ii) All the 44 candidates were considered and recommended by the DPC (except those whose cases were under sealed cover); (iii) Evaluation of the candidates was done on the basis of 20 marks (pre- interview category) and 10 marks for the interview, taking it to a total of 30 marks. These 30 marks would include APAR, seniority, field experience and personal interview. (iv) 20 marks were allocated in pre- interview category, the marks obtained by each of the candidates were already available with the DPC/Interview Board and the marks awarded by the DPC/Interview Board have been recorded subsequently. (v) Most of the candidates who were awarded higher marks in the pre-interview category were given less than 6 marks in the interview and the candidates who were awarded less marks in pre- interview category were given more than 6 marks in the Interview. (vi) Each of the 44 candidates has been recommended by the DPC against 13 vacancies, except for two candidates, recommendations with respect to whom were placed in the sealed cover. (vii) The total score of the candidate at Sl. No.30, namely, 47 Item No. 19(C-3) O.A. No.2264/2018 Sh. Rajesh Srivastava, was 23.5 while his actual score is 19.50+3.5 which is 23 in total.
25. It has not been disputed that the interviews were completed within a span of just 2.30 hrs giving each of the candidates approx. 3 minutes. Evidently, the marks obtained in the pre-interview category have played a significant role in the mind of the DPC while awarding the marks in the interview.
26. The fact that the DPC recommended each of the 44 candidates as against 13 vacancies raises a doubt on the DPC recommendations. The normal practice is to recommend not more than thrice the number of vacancies, so that in the event of refusal of promotion by some selected candidates, the competent authority may offer appointment to the candidates from the extended select list. But in the instant case, the select list extends to more than 300% of the actual vacancies. This action by the DPC/Interview Board is nowhere explained. This raises serious doubt about the integrity of the DPC proceedings. Secondly, there were 7 Members in the DPC, yet none of them chose to check even the total obtained by one of the candidates. The work and conduct of the candidates 48 Item No. 19(C-3) O.A. No.2264/2018 whose names were considered by the DPC was to be corroborated by the DPC i.e. seniority, field experience & APARs. Most of the candidates who have obtained higher marks on this count have been awarded less than 6 marks in the interview, to name a few, candidate at Sl. No.4 Mrs. Gayatri R. Rajesh scored 20/20 marks in the pre-interview category as compared to Dr. Manika Negi who appeared at Sl. No.5 and had been awarded 18/20 marks under the pre-interview category, but she got 9 marks in interview out of 10, while Mrs. Gayatri R. Rajesh scored 3 marks out of 10 in the interview, which raises a doubt upon the DPC/interview proceedings. The applicant before appearing in the interview was at Sl. No. 13, but after the total score of pre-interview and interview she has been placed at Sl. No.17 in the merit list. Since there were only 13 vacancies and the applicant was placed at Sl. No.17, she could not be recommended for promotion for want to vacancy. The consistency observed in systematically lower interview marks to all the candidates who had scored higher marks in seniority+field experience and APAR, shows the bias of the interview Board.
49Item No. 19(C-3) O.A. No.2264/2018
27. From the above, it transpired that the seniority of the applicant is not in dispute and the persons junior to the applicant in the seniority of Joint General Manager stood promoted as General Manager (Projects) through the impugned order dated 22.12.2017. The reason explained by the respondents is that the merit is to be respected and since the post of General Manager (Projects) was to be filled on the basis of merit and not only seniority and the fact that the applicant obtained less marks in computing the score, she could not be promoted. The DPC proceedings clearly indicate that the marks of the pre- interview category were already placed before the DPC and the analysis of the DPC proceedings further indicate that the candidates who secured higher merit in the pre-interview category have been awarded less marks in the personal interview for example candidate at Sl. No.4 scored 20/20 marks in the pre-interview category and only 3 marks in the personal interview and candidate at Sl. No.5 scored 18 marks in the pre- interview category and 9 marks in the personal interview. Evidently, the marks have played a crucial role before the DPC while assessing the candidates in the interview. It is also not in dispute that not more 50 Item No. 19(C-3) O.A. No.2264/2018 than three minutes were extended to each of the candidates.
28. In this context, we are guided by the decisions of the Hon'ble Apex Court in Ajay Hasia (supra) and Ashok Kumar Yadav (supra) , wherein it has been held that for a subjective evaluation of the personality and ability of a candidate, 2-3 minutes time cannot be considered to be a sufficient time and in order to arrive at a fair and satisfactory evaluation of the personality of a candidate, the interview must take anything between 10 to 30 minutes. The submission of learned counsel for the respondents that the said decisions may not be applicable in the present facts is misplaced for the reason that the Hon'ble Apex Court in the aforesaid cases has decided with respect to 'oral interviews' which is the issue in hand. Additionally, the marks allocated to the interview were more than 33%, excessively giving a higher discretion to the Members of the DPC, which raises a doubt.
29. The contention raised by the learned counsel for the applicant with respect to the constitution of the DPC and one of the Members being the interested Members has not been answered by the respondents. 51 Item No. 19(C-3) O.A. No.2264/2018
30. The submission of the private respondents that they have continued since 2017 on ad hoc basis in fact refers the concept of ad hoc redundant. The submission of the learned counsel for the respondents that the DOP&T OM may not be applicable to the HUDCO as it has not been adopted by them is also misplaced.
31. We note that the learned Senior Counsel for the applicant has time and again raised the issue of selection criteria, even during the submissions after the case was remanded by Hon'ble High Court for fresh adjudication. However, this issue is no more res-integra as the Hon'ble High Court vide its Order dated 05.01.2024 has categorically held that the selection criteria adopted by the respondents could not be set aside.
32. In view of what has been recorded hereinabove, we have no hesitation in concluding that the DPC has conducted the interview in an unfair and biased manner. Therefore, the entire DPC proceedings are vitiated. Hence, these are liable to be quashed.
33. Accordingly, the OA is allowed. The order dated 22.12.2017 is quashed and set aside along with the 52 Item No. 19(C-3) O.A. No.2264/2018 ad hoc promotions made, including that of respondents No.8. The competent authority of the respondents shall carry out a fresh exercise of considering promotions to the post of General Manager (Projects) from the eligible Joint General Managers by ensuring that the same is done on the basis of objective parameters and in accordance with the guidelines on the subject.
34. The respondents may consider amending the selection criteria of reducing the weightage of interview from the 33.33% to a lesser percentage, keeping in view the Hon'ble Apex Court's observations in Ajay Hasia (supra) and Munindra Kumar (supra) cases.
35. The above exercise shall be completed by the respondents within a period of 8 weeks from the date of receipt of a certified copy of this order.
36. Pending MAs, if any, shall stand disposed of. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
'rk'