Central Administrative Tribunal - Chandigarh
Amritpal Singh Son Of Hakam Singh ... vs Union Territory Chandigarh Through Its ... on 1 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH
ORIGINAL APPLICATIONS NO.492/PB/2010 & 510/PB/2010
Pronounced on 01.09.2015
Order Reserved on 25.08.2015
CORAM: HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
HON'BLE DR. BRAHM A. AGRAWAL, MEMBER (J)
O.A. No.492/PB/2010
1. Amritpal Singh son of Hakam Singh resident of Village & Post Office Rangil Pur, Tehsil & Distt. Ropar, roll No.1146.
2. Manjit Singh son of Mewa Singh resident of Village Thalli Khurd, Post Office Ghanoli, Tehsil & Distt. Ropar, Roll No. 575.
3. Avtar Singh son of Bhupinder Singh resident of Village & Post Office Bhaku Majra, Tehsil & Disttt. Ropar, Roll No. 1806.
4. Narinder Singh son of Hawa Singh resident of Village & Post Office Guhana, Tehsil & Distt. Sonepat, Roll No. 2227.
5. Jaswinder Singh son of Ajmer Singh resident of Village & Post Office Kotla Nihang, Tehsil & Distt. Ropar, Roll No. 1314.
6. Gurcharan Singh son of Ishar Singh resident of Village & Post Office Gardle, Tehsil & Distt. Ropar, Roll No. 2134
7. Charanjit Singh son of Rattan Chand resident of V.P.O. Bajrur, Tehsil Anandpur Sahib Distt. Ropar, Roll No. 458.
8. Davinder Singh son of Amarjit Singh resident of V.P.O. Manak Majra, Tehsil Rajpura Distt. Patiala, Roll No. 1461.
9. Harminder Singh Saini son of Baljit Singh resident of V.P.O. Mukari, Tehsil Anandpur Sahib Distt. Ropar, Roll No. 1383.
10. Harjit Singh son of Sukhdev Singh resident of V.P.O. Siomajra Tehsil Kharar Distt. Mohali, Roll No.2501.
11. Ravinder Singh son of Gurdev Singh resident of Village Lulon Post Office Badwala, Tehsil Bassi Pathana Distt. Fatehgarh Sahib, Roll No. 1461.
12. Jarnail Singh son of Hemraj resident of Village Bahadur Pur Post Office Lodhimajra, Tehsil & Distt. Ropar, Roll No. 585.
13. Harjit Singh son of Amrik Singh resident of Village & Post Office Chacho Majra, Tehsil & Distt. Mohali, Roll No. 2557.
14. Jaspal Singh son of Baldev Singh resident of village Maad Pur Post Office Mian Pur, Tehsil & Distt. Ropar, Roll No. 58.
15. Baljit Singh son of Ujagar Singh resident of Village & Post Office Bur Majra Tehsil Morinda Distt. Ropar, Roll No. 2071.
16. Tarlochan Singh son of Ajit Singh resident of village & Post Office Khijabad, Tehsil Kharar Distt. Mohali, Roll No. 870.
17. Gurdeep Singh son of Gurmej Singh resident of village Shahpur Post Office Sahoran, Tehsil Kharar Distt. Mohali, Roll No. 542.
18. Mohan Singh son of Harbhajan Singh resident of Village Parri Post Office Mian Pur, Tehsil & Distt. Ropar, Roll No. 60.
19. Darbara Singh son of Balwant Singh resident of Village & Post Office Mandoli Tehsil Rajpura Distt. Patiala.
20. Gurpreet Singh son of Gurmeet Singh resident of Village Rallon, Post Office Anandpur Kalor, Tehsil Bassi Pathana Distt. Fatehgarh Sahib, roll No. 134.
21. Rajiv Kumar son of Suram Singh resident of village & Post Office Ambota, Tehsil Amb Distt. Unna, Roll No. 3162.
22. Jagdev Singh son of Omparkash resident of Village Saloh, Tehsil, Haroli Distt. Unna, Roll No. 1680.
23. Gurdeep Singh son of Sarwan Singh resident of V.P.O. Jaso Majra, Distt., TSDS Nawanshehar, Roll No. 1432.
24. Kuldeep Singh son of Sucha Singh resident of village Chaklan Post Office Bhagwantpur, Distt. Ropar, Roll No. 1446.
25. Gurpal Singh son of Gurmeet Singh resident of VPO Manimajra, Tehsil & Distt. Chandigarh, Roll No. 134.
26. Tarsem Lal S/o Ramlok village Kasombowal PO Manipur Tehsil Nalagarh.
27. Gurpreet Singh son of Sh. Mewa Singh House No. 1117/15 Gobind Pura Manimajra UT Chandigarh. Roll No. 1492
28. Harinder Singh son of Sh. Hardev Singh Village Pandori Gola Tehsil & District Tarn Taran, Roll No. 1457.
29. Avtar Singh son of Sh. Karan Singh Village Dhakansu Majra Tehsil Rajpura District Patiala, Roll No. 2289.
30. Kulwinder Singh son of Sh. Bikram Singh Village Nangal P.O. Abiana Tehsil Anandpur Sahib District Ropar, Roll No. 1859.
31. Ravinder Singh son of Sh. Bahadur Singh Village Kadi Majra P.O. Bhandwan District Mohali, Roll No. 2934.
32. Mukesh son of Sh. Dhrambir Village Garhi Bala P.O. Bindrolli District Sonipat.
. Applicants
Versus
1. Union Territory Chandigarh through its Secretary Department of Transport, Sector 9, Chandigarh.
2. Director Transport, Union Territory, Chandigarh cum Divisional Manager, Chandigarh Transport Undertaking Chandigarh Plot No. 701, Industrial Area, Phase-I, Chandigarh.
3. Kuldeep Raj S/o Mohinder Singh, Roll No. 584
4. Rajesh Kumar S/o Hari Krishan, Roll No. 1118
5. Kuldeep Singh son of Mohinder Singh Roll No. 188 Sh. Rajinder Singh S/o Sh. Jagdev Singh
6. Rajinder Singh S/o Sh. Ajit Singh
7. Roop Singh S/o Sh. Karam singh
8. Amar Singh S/o Bant Singh
9. Shakti Singh S/o Sh. Purshotam Chand
10. Bhagwan Sharma S/o Sh. Raj Kumar
11. Om Parkash S/o Sh. Chhaju Ram
12. Harwinder Singh S/o Sh. Kesar Singh
13. Rajinder Singh S/o Sh. Mewa Singh
14. Ashok Kumar S/o Sh. Chand Singh
15. Ram Mehar S/o Sh. Abhay Ram
16. Daljit Singh S/o Sh. Chhatar Singh
17. Mahipal S/o Sh. Hem Raj
18. Om Parkash S/o Sh. Chaju Ram
19. Kaka Singh S/o Sh. Maim Raj
20. Kamaljit Singh S/o Sh. Ram Saran
21. Balbir singh S/o Sh. Bhagat Singh
22. Bhupinder Singh S/o Sh. Jaswant Singh
23. Virender Singh S/o Sh. Ram Kumar
24. Ram Kumar S/o Sh. Gopal Ram
25. Daljit Singh S/o Sh. Chatter Singh
26. Indra Singh S/o Sh. Chaju Ram
27. Gurbax Singh S/o Sh. Mukhtiar Singh
28. Vishnu S/o Sh. Raj Singh
29. Ranjit Singh S/o Sh. Hardev Singh
30. Harwinder singh S/o Sh. Kesar Singh
31. Iqbal Singh S/o Sh. Ram Singh
32. Ram Lal s/o Sh. Shardha Ram
33. Amarjit Singh S/o Sh. Pakhar Singh
34. Sumer Singh S/o Sh. Sardar Singh
35. Kuldeep Raj S/o Sh. Mohinder Singh
36. Ashu Chaudhary S/o Sh. Bhim Singh Chaudhary
37. Kulwinder Singh S/o Sh. Atma Singh
38. Ranjit Singh S/o Sh. Kuldeep Singh
39. Ashim Ghosh S/o Sh. Sasti Mohan Ghosh
40. Anil Kumar S/o Sh. Sardar Singh
41. Harjant Singh S/o Sh. Resham Singh
Respondents No. 3 to 41, through office of Director Transport, U.T. Chandigarh, Plot No. 701, Industrial Area, Phase-I, Chandigarh.
Respondents
Present: Sh. Alok Jagga, counsel for the applicants.
Sh. Aseem Rai, counsel for the respondents no.1 and 2.
Sh. D.R. Sharma, counsel for respondents no.3 to 30, 32 to 39 and 41.
None for respondents no.31 and 40.
O.A.No.510/PB/2010
1. Sh. Jasvir Singh S/o Sh. Roshan Singh R/o Village Plassi PO Bhanam Tehsil Nangal District Ropar.
2. Lakhbir Singh S/o Malkiat Singh R/o Chourwala PO Rurki Tehsil and District Fatehgarh Sahib.
Applicants
Versus
1. Union Territory, Chandigarh through its Secretary, Department of Transport, Sector 9, Chandigarh.
2. The Director (Transport), Union Territory, Chandigarh cum Divisional Manager, Chandigarh Transport Undertaking, Plot No. 701, Industrial Area, Phase-I, Chandigarh.
3. Sh. Rajesh Kumar S/o Har Krishan (Roll No. 1118)
4. Sh. Shakti Singh S/o Sh. Purshotam Chand
5. Sh. Bhagwan Sharma S/o Sh. Raj Kumar
6. Sh. Om Parkash S/o Sh. Chhaju Ram
7. Sh. Harwinder Singh S/o Sh. Kesar Singh
8. Sh. Rajinder Singh S/o Sh. Mewa Singh
9. Sh. Ashok Kumar S/o Sh. Chand Singh
10. Sh. Ram Mehar S/o Sh. Abhay Ram
11. Sh. Daljit Singh S/o Sh. Chhatar Singh
12. Sh. Raj Pal S/o Balbir Singh
13. Sh. Ashok Kumar S/o Chand Singh
14. Amit Kumar S/o Mehtab Singh
15. Karamveer Singh S/o Shri Bhagwan
16. Daljit Singh S/o Chhatar Singh
17. Bhupinder Singh S/o Jaswant Singh
18. Sh. Sukhwinder Singh S/o Sh. Ranjit Singh
19. Sh. Vishnu S/o Sh. Raj Singh
20. Sh. Gurchara Singh S/o Sh. Amarjit Singh
21. Sh. Gurbax Singh S/o Sh. Mukhtiar Singh
22. Sh. Indra Singh S/o Sh. Chhaju Ram
23. Sh. Kaka Singh S/o Sh. Mam Raj
24. Sh. Surjit Singh S/o Sh. Chand Ram
25. Sh. Anup Sharma S/o Sh. Kehar Chand
26. Sh. Jagdeep Singh S/o Sh. Ajmer Singh
27. Sh. Karamveer S/o Sh. Bhagwan
28. Sh. Jaswinder Singh S/o Sh. Iqbal Singh
29. Sh. Balkar singh S/o Sh. Dilbagh Singh
30. Sh. Shriom S/o Sh. Krishan
31. Sh. Chamkaur Singh S/o Sh. Amarjit Singh
32. Sh. Pawan Kumar S/o Sh. Maya Singh
33. Sh. Balwinder Singh S/o Sh. Ujjagar Singh
34. Sh. Gurmail Singh S/o Sh. Harjeet Singh
35. Sh. Achhar Singh S/o Sh. Kundan Singh
36. Sh. Vijay Singh S/o Sh. Krishnu Ram
37. Sh. Jasvir Singh S/o Sh.Sohan Singh
38. Sh. Dharmender Kumar S/o Sh. Randhir Singh
39. Sh. Narender Singh S/o Sh. Randhir Singh
40. Sh. Gurdarshan Singh S/o Sh. Shayam Singh
41. Sh. Jawant Singh S/o Sh. Dharam Singh
42. Sh. Kulbir Singh S/o Sh. Jai Singh
43. Sh. Ravinder Kumar S/o Sh. Gaje Singh
44. Sh. Attar Singh S/o Sh. Sheotaj Singh
45. Sh. Gurbachan Singh S/o Sh. Lachhman Singh
46. Sh. Anil Kumar S/o Sh. Anirudh
47. Sh. Nirwair Singh S/o Sh. Gulzar Singh
48. Sh. Surinder Pal Singh S/o Sh. Tara Singh
49. Sh. Rajesh Kumar S/o Sh. Sher Singh
50. Sh. Anand Kumar S/o Sh. Mange Ram
51. Sh. Dilawar Singh S/o Sh. Julfi Ram
52. Sh. Sanjeev Kumar S/o Sh. Bhagat Ram
53. Sh. Subhash S/o Sh. Hari Saran
54. Sh. Ashim Ghosh S/o Sh. Sasti Mohan Ghosh
55. Sh. Ranjeet Singh S/o Sh. Kuldeep Singh
56. Sh. Kulwinder Singh S/o Sh. Atma Singh
57. Sh. Ashu Chaudhary S/o Sh. Bhim Singh Chaudhary
58. Sh. Rajinder Singh S/o Sh. Jagdev Singh
59. Sh. Rajinder Singh S/o Sh. Ajit Singh
60. Sh. Sanjeev Saini S/o Sh. Kundan Lal Saini
61. Sh. Inderjit Singh S/o Sh. Raghubir Singh
62. Sh. Harjant Singh S/o Sh. Resham Singh
63. Sh. Anil Kumar S/o Sh. Sardar Singh
64. Sh. Ramesh Kumar S/o Sh. Jogi Ram
65. Sh. Kashmir S/o Sh. Kartar Singh
66. Sh. Balbir Singh S/o Sh. Bharat Singh
67. Sh. Sucha Ram S/o Sh. Bundi Ram
68. Sh. Ramesh Kumar S/o Sh. Bhagat Ram
69. Sh. Ashok Kumar S/o Sh. Rishi Kumar
70. Sh. Balbir Singh S/o Sh. Harnam Singh
71. Sh. Satish Kumar S/o Sh. Sheetal Ram
72. Sh. Gurmail Singh S/o Sh. Kak Ram
73. Sh. Balwinder Kumar S/o Sh. Sulekh Chand
74. Sh. Tejpal Singh S/o Sh. Jagir Singh
75. Sh. Surinder Kumar S/o Sh. Telu Ram
76. Sh. Sarbjit Singh S/o Sh. Nachhttar Singh
77. Sh. Rajesh Kumar S/o Sh. Deepak Kumar
78. Sh. Rajesh Kumar S/o Sh. Charan Singh
79. Sh. Mahavir Singh S/o Sh. Ram Kumar Singh
80. Sh. Rajinder Singh S/o Sh. Ujagar Singh
81. Sh. Jagdish Chand S/o Sh. Ram Rakha
82. Sh. Sansar Chand S/o Sh. Babu Ram
83. Sh. Mukesh Kumar S/o Sh. Ram Sharan
84. Sh. Manoj Kumar S/o Sh. Mohinder Lal
85. Sh. Shankar Singh S/o Sh. Jagga Singh
86. Sh. Sahdev Singh S/o Sh. Atar Singh
87. Sh. Jasmer Singh S/o Sh. Harnek Singh
88. Sh. Karansher Singh Bhatti S/o Sh. Jagdev Singh Bhatti
89. Sh. Iqbal Singh S/o Sh. Ram Singh
90. Sh. Harwinder Singh S/o Sh. Kesar Singh
91. Sh. Ranjit Singh S/o Sh. Hardev Singh
92. Sh. Karnail Singh S/o Sh. Gurcharan Singh
93. Sh. Somnath Singh S/o Sh. Sampuran Singh
94. Sh. Ram Lal S/o Sh. Shardha Ram
95. Sh. Vijay Kumar S/o Sh. Jagan
96. Sh. Satpaul S/o Sh. Lashkari Ram
97. Sh. Rakesh Kumar S/o Sh. Lal Singh
98. Sh. Gurnam Singh Chauhan S/o Sh. Roop Chand
99. Sh. Ved Parkash S/o Sh. Mohinder Singh
100. Sh. Tarsem Singh S/o Sh. Pritma Singh
101. Sh. Narender Singh S/o Sh. Jagmail Singh
102. Sh. Sanjay Kumar S/o Sh. Kalam Singh
103. Sh. Tejinder Singh S/o Sh. Dalip Singh
104. Sh. Satyawan Singh S/o Sh. Chand singh
105. Sh. Sher Singh S/o Sh. Jiya Ram
106. Sh. Surinder Singh S/o Sh. Ishar Das
107. Sh. Kulbir Singh S/o Sh. Prem Singh
108. Sh. Anil Kumar S/o Sh. Maman Ram
109. Sh. Lakhwinder Singh S/o Sh. Nachhattar Singh
110. Sh. Vikas Kumar S/o Sh. Jasbir Singh
111. Sh. Joginder singh S/o Sh. Fouja Singh
112. Sh. Subhash Chand S/o Sh. Bhaham Chand
113. Sh. Sohan Lal S/o Sh. Swarna Ram
114. Sh. Pawan Kumar S/o Sh. Mohinder singh
115. Sh. Dharampal S/o Sh. Prabhati Lal
116. Sh. Jal karan S/o Sh. Maan Singh
117. Sh. Gurmail Singh S/o Sh. Mohinder Chand
118. Sh. Kamaljeet Singh S/o Sh. Tara Singh
119. Sh. Ashwani Kumar S/o Sh. Chet Ram
120. Sh. Mukesh S/o Sh. Jeet Ram
121. Sh. Sanjeev Kumar S/o Sh. Harnam Singh
122. Sh. Suresh Kumar S/o Sh. Diwan Singh
123. Sh. Mohan Singh S/o Sh. Jit Singh
124. Sh. Parveen S/o Sh. Daya Ram
125. Sh. Saroop kumar S/o Sh. Mehar Chand
126. Sh. Naresh Kumar S/o Sh. Amar Nath
127. Sh. Khushpreet Singh S/o Sh. Jarnail Singh
128. Sh. Kuleep Raj S/o Sh. Mohinder Singh
129. Sh. Sumer Singh S/o Sh. Sardar Singh
130. Sh. Amarjit Singh S/o Sh. Pakhar Singh
131. Sh. Jai Chand S/o Sh. Sarju Dass
132. Sh. Vijay Kumar S/o Sh. Rameshwar
133. Sh. Ram Kumar S/o Sh. Gopal Ram
134. Sh. Virender Singh S/o Sh. Ram Kumar
Respondents No.3 to 134 through the Director (Transport), Union Territory, Chandigarh cum Divisional Manager, Chandigarh Transport Undertaking, Chandigarh, Plot No.701, Industrial Area, Phase-I, Chandigarh.
Respondents
Present: Sh. Alok Jagga, counsel for the applicants.
Sh. Aseem Rai, counsel for respondents no.1 and 2.
Sh. D.R. Sharma, counsel for respondents no.3 to 62 & 64 to 134.
None for respondents no.63.
O R D E R
BY HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
1. The O.A. No.492/PB/2010 was filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
8(i) Quash result for the posts of drivers declared by the respondent no.2 Director Transport, Union Territory, Chandigarh in charge Chandigarh Transport Undertaking, Chandigarh published in The Tribune English Newspaper edition dated 3 Jun 2010.
(ii) Appoint the applicants as drivers as they are better trained and more qualified than the selected candidates.
(iii) Cancel the select list being out come of the unfair selection and money played the main role in selection and is a scam of hundreds of crores. The select list be cancelled and video movie should be made of the entire fresh selection.
(iv) Petitioners also seek CBI inquiry in the selection. Selection is full of malafide.
(v) More than 100 posts are still lying vacant. These be filled from this selection, and vacancies of ex-servicemen should be completed as per advertisement.
(vi) The applicant no.25 should be considered by official respondents, in OBC Category. This O.A. was decided along with O.A. No.O.A.No.510-PB-2010, O.A.NO.770-PB-2010, O.A.NO.35-CH-2011 and O.A.NO.152-HR-2011 vide order dated 08.02.2013. The relevant para of that order reads as follows:
40. The following conclusions can, thus, safely be culled out from the above discussion:-
(a) The applicants have not been able to prove that there was any element of arbitrariness in the conduct of dug test on the terms indicated by them.
(b) The impugned selection process has been proved to be vitiated to the extent that vacancies in excess of the advertised number came to be filled up under the general category and the OBC category.
(c)&(d) The applicants have been able to prove the charge that there was extreme arbitrariness in the award of marks at the interview to the selected candidates. There is enough material available on record to prove that the award of marks at the interview was manipulated in a manner that only the indicated candidates would benefit. The fixture of 32% marks for the purpose of viva voce test is also violative of law in Ajay Hasia and others v. Khalid Mujib Sehravardi and Others (supra) and Ashok Kumar Yadav and Ors. etc. vs State Of Haryana and Ors.(supra)
(e) The applicants have not been able to prove that the impugned selection process deserves to be invalidated as the criteria to be adopted had not been disclosed in Annexure A-1 and the Corrigendum.
41. In the normal course of things, we would have been inclined/authorized to invalidate only those appointments which came to be made in excess of the vacancies advertised vide Annexure A-1 and the Corrigendum issued in the context thereof. However, the proven fact of arbitrariness in the quantification as also the award of the marks at the process of interview, persuades us to hold that the credibility of the entire selection process stands eroded.
42. In that view of things, we have no option but to invalidate the entire selection process. This order was impugned before the Honble High Court in CWPs No.3682 of 2013, titled Ram Mehar & others vs. Devender Singh & others, no.3683 of 2013 titled Indra Singh & others Vs. Amritpal Singh & others, no.3685 of 2013 titled Amit Kumar & others vs. Kuldeep Singh & others, no.4002 of 2013 titled Jaswant Singh & others vs. Gopal Singh & others, no.4009 of 2013 titled Satish Kumar & others vs. Jasvir Singh & others, no.4637 of 2013 titled Anil Kumar vs. Devender Singh & others and matter was decided through a common order dated 09.12.2014. Relevant paras of that order read as under:
X X X X X (3) Without referring to the facts in extenso, suffice it to mention that the Tribunal has set aside the selection of Drivers on two counts, i.e. (i) 15 marks for interview out of total 50 marks were in excess and in violation of the law laid down by the Hon'ble Supreme Court in Ajay Hasia and others versus Khalid Mujib Sehravadi and others [1981 (1) SCC 722] and Ashok Kumar Yadav and others versus State of Haryana and others [1985 (4)SCC 417]; (ii) The number of general category and OBC vacancies have been filled up in excess of the advertised posts in total disregard to the settled legal position that appointment cannot be made in excess to the advertised posts.
(4) In order to appreciate the first ground assigned by the Tribunal to set aside the selection, it is useful to reproduce the criteria of selection adopted by the Selection Committee which was to the following effect:-
i) That the criteria of selection adopted by the Department suffers no infirmity.
The criteria of selection was as under:-
Marks for dug driving test 25 marks
(qualifying marks of dug/driving test
was 12.5)
ITI Motor Mechanism 5 marks
Sports position held in State/National Level 5 marks
Interview 15 marks
Grand total marks 50 marks
(5) It may be seen from the above reproduced criteria that there was no 'Written Test' held for the subject selection. It is urged by the learned counsel for the petitioners (selected candidates) that the principles laid down by the Apex Court in Ajay Hasia and others and Ashok Kumar Yadav and others cases are not applicable as it was not a case where merit list was prepared on the basis of combined performance in written test and interview. They rely upon the decision of the Hon'ble Supreme Court in Anjar Ahmed versus State of Bihar, 1994 (1) SCC 150 and in Subhash Chander Verma versus State of Bihar, AIR 1995 SC 904: [1995 (1) SLR 300 (SC)] as well as Harjinder Singh Sodhi versus State of Punjab and others, JT 1996 (9) SC 443: [1997(1) SLR 187 (SC)]. On the other hand, learned counsel for the Original Applicants submit that the 'Dug/Driving Test' comprising 25 marks was akin and similar to a written test, therefore, the Tribunal has rightly held that the interview marks to the extent of 32% prescribed in the instant selection were highly excessive and contrary to the settled principles.
(6) Learned counsel for the parties, however, do not dispute the fact that the question whether the Dug/Driving Test was at part with a written test or it was only a 'skill test' based upon at the spot performance, was neither raised nor has been answered by the Tribunal vide its impugned order.
(7) As regard to the second ground which found favour with the Tribunal, it is urged on behalf of the petitioners that the vacancies reserved for Ex-servicemen (General or OBC) to the extent of non-availability of suitable candidates of those categories could be reverted to the candidates belonging to General Category or OBCs, as the case may be. There is, however, a counter submission to negate this plea on behalf of the earned counsel for the Original Applicants. But then this aspect too has not been expressly dealt with by the Tribunal vide its order under challenge.
(8) In the light of the above, it appears to us that the entire controversy requires redetermination by the Tribunal, especially on the following issues:-
(i) Whether the Dug/Driving Test was equivalent to and at par with a 'Written Test' for the purpose of attracting the principles laid down by the Hon'ble Supreme Court in two sets of cited decisions?
(ii) Whether the vacancies reserved for Ex-servicemen (General Category or OBC) to the extent of nonavailability of suitable candidates of those categories, could be diverted and filled up from amongst the candidates belonging to General Category or OBC?
(9) There are several other contentions raised on behalf of the petitioners and the Original Applicants before us. Instead of taking notice of those submissions at this stage, we grant liberty to them to raise those issues before the relegated forum, so as to enable the learned Tribunal to decide the same in accordance with law.
(10) Resultantly, the writ petitions are allowed to the extent above. The orders under challenge dated 08.02.2013 (Annexure P-4) passed by the Tribunal are set aside and the matter is remitted to the Tribunal for a fresh adjudication with specific reference to the issues mentioned above. The parties are directed to appear before the Tribunal on 27.01.2015.
(11) X X X X X
2. Arguments advanced by learned counsel for the parties were heard when learned counsel confined themselves to the issues mentioned in para 8 of the order of the Honble High Court. Sh. Alok Jagga, learned counsel for the applicants stated that there was no justification whatsoever for prescribing 30% of the marks for the interview of the persons to be selected as drivers. He stated that a large number of candidates who had passed the dug/driving test were interviewed in a very short time frame of 06 days. For the post of driver it was hardly necessary to interview the candidates at length with a view to assessing their general knowledge regarding matters unrelated to their jobs. Moreover, many of the candidates who did well in dug/driving test got low marks for the interview. It appeared therefore, that the interviews were marked by bias. Learned counsel cited the following judgments to press his contention that for the category of driver not more than 15% of the marks should have been assigned for the interview:-
1. Civil Appeal Nos.5329 to 5332 of 1990 Civil W.P. Nos.719 and 824 of 1990 titled Mohinder Sain Garg Vs. State of Punjab decided on 15.11.1990, reported as 1991(1) S.C.T.647.
2. Civil Appeal Nos.10160-10162 of 1983 titled Ashok Kumar Yadav Vs. State of Haryana decided on 10.05.1985, reported as 1987 AIR (SC) 454.
3. Civil Appeal No.927 of 2007 (arising out of SLP (Civil) No.5064 of 2006 titled P. Mohanan Pillai Vs. State of Kerala & Ors., decided on 23.02.2007, reported as 2007(2) S.C.T. 604.
4. C.W.P. No.362 of 1991 titled Dr. Jagdish Chander Vs. State of Haryana decided on 01.06.1992, reported as 1992(3) S.C.T.409.
5. W.A. Nos.1403, 1878 of 2009 and W.P. No.22070 of 2009 titled V. Arumugam & Ors. Vs. R. Kalaiarasan & others, decided on 08.10.2010, reported as 2010 (8) MLJ 142.
6. L.P.A. No.59 of 1990 (R) titled Coal India Ltd. Vs. Rajib Ranjan Kumar decided on 07.07.1997, reported as 1998(2) S.C.T. 452.
7. C.M.W.P. No.6901 of 2001 titled Dr. Gaurav Khanna Vs. Secretary, Kamla Nehru Memorial Hospital, (Allahabad) decided on 17.04.2001, reported as 2001(4) S.C.T.66.
8. Civil Writ Petition No.2571 of 2001 titled Vikas Vs. State of Punjab (P&H) decided on 18.05.2001, reported as 2001 (2) CLJ (Service) 9.
9. Writ Petition (C) No.507 of 1989 titled All India State Bank Officers Federation v. Union of India decided on 13.09.1996, reported as 1997(1) S.C.T. 91.
10. Civil Misc. Writ Petition No.24584 of 1989 titled Vinay Khare Vs. State of U.P. (Allahabad) decided on 05.05.1992, reported as 1993 LIC 526.
11. Civil Appeal No.2366 of 1989 titled Vikram Singh Vs. S.S.S. Board, Haryana decided on 15.11.1990, reported as 1991(1) S.C.T.122.
12. Writ Petition No.488 of 1992 titled Esther Kavitha Vs. State of T.N. (Madras) decided on 24.03.1992, reported as 1992 AIR (Madras) 359.
On the issue of filling a larger number of posts than that advertised, learned counsel stated that this was not permissible. Even if Ex-serviceman candidates were not available, the respondents could not recruit more persons than the number of vacancies for the different categories as stated in the advertisement. Learned counsel cited Civil Appeal Nos.1133-1135 of 2010 titled Rakhi Ray Vs. The High Court of Delhi decided on 01.02.2010 in this regard. On these grounds, learned counsel stated that the selection of the private respondents as drivers in the CTU deserved to be set aside.
3. Sh. Aseem Rai, learned counsel for respondents no.1 and 2 stated that there was no hard and fast rule that the marks for interview could not exceed 15%. He stated that the post of driver in CTU was a public dealing post and personality traits of the candidates had to be observed and assessed so as to appoint persons who could perform their duties properly. Merely having driving skill was not adequate qualification for a person to be appointed as driver. Hence there was no irregularity in 15 marks having been assigned for the interview out of a total of 50 marks. He cited Jagpal Singh vs. State of Haryana (CWP No.14659 of 1998) decided on 18.11.1998 in this regard.
4. Learned counsel also stated that since Ex-serviceman were not available in adequate numbers, the persons from the general category and OBC categories had been appointed against these vacancies reserved for Ex-serviceman. In this regard he referred to judgment dated 06.08.2012 in case of Garima Jindal Vs. Haryana Vidhyut Parsaran Nigam Limited & Anr. in C.W.P. No.13384 of 2011, wherein it had specifically been observed by the Honble High Court that the claim of the applicant was upheld on the basis of the conclusion that unfilled posts of ESM general category reserved on the basis of horizontal reservation are to be filled in general category in case of non-availability of ESM general category candidates. Learned counsel also referred to letter No.3862-IH(7)-2001/23031 dated 10.12.2001, wherein the matter regarding reservation of ex-serviceman being horizontal reservation had been clarified.
5. Sh. D.R. Sharma, learned counsel for the private respondents No.3 to 30, 32 to 39 and 41 adopted the arguments advanced by Sh. Aseem Rai. He further stated that in the advertisement issued on 10.11.2009 wherein the category wise division of posts for General, SC, OBC and Ex-serviceman was indicated, it was specifically mentioned that during the intervening period of selection process, posts found lying vacant would be included in the posts of this advertisement and would be filled accordingly. Learned counsel stated that in view of this content of the advertisement, there was no irregularity in excess posts having been filled in any category on the basis of recruitment that took place in response to advertisement issued in November 2009.
6. We have given our careful consideration to the matter. The table below will show the number of vacancies, category wise, advertised for being filled vide advertisement dated 10.12.2009. This table also shows number of persons actually appointed in response to the advertisement 3382 applications were received by the closing date on 29.12.2009. On scrutiny 2342 candidates were found provisionally eligible and called for Dug/Driving test conducted from 08.03.2010 to 09.04.2010. 393 candidates who qualified this test were called for final interview from 17.05.2010 to 21.05.2010 and 24.05.2010.
Vacancies as per category General SC OBC ESM Total General SC OBC 27 17 21 14 12 13 104 Actually appointed +22 49 +12 29 +16 37
-8 6
-9 3
-9 4 128 From the break up of marks assigned for assessing the candidates and selecting them, it is clear that the Dug/Driving test was a skill test and only persons who qualified the same by getting at least 12.5 marks out of 25 marks were called for the interview. Weightage was also given to ITI Motor Mechanism and excellence in sports (5 marks each). 15 marks were assigned for interview out of total 50 marks.
7. For a person to work efficiently as driver and considering the safety of passengers as of paramount importance, Dug/Driving test is the real test for suitability for selection as driver. Personality/ behavioural traits of a person can be improved/corrected through proper training so that a person who has the requisite skill of driving can also interact properly with the public using public bus transport if required to do so. Hence the Dug/Driving test is akin to a written test that is prescribed for selection of persons who are required to have theoretical knowledge of a subject that is necessary for performing their duties and also reflects their academic performance in the subject. Having perused the case law cited by the learned counsel for the applicants, we are of the view that Mohinder Sain Garg (Supra), P. Mohanan Pillai (Supra), Dr. Jagdish Chander (Supra), V. Arumugam (Supra), Coal India Ltd. (Supra) are relevant to the present matter:
i. Mohinder Sain Garg (Supra) reported as 1991(1) S.C.T.647, wherein selection of Excise and Taxation Inspector was discussed, it was held as follows:-
Constitution of India, Articles 14 and 16-Interview/Selection/Viva voce test-Appointment/Reservation of marks for interview/Selection for the post of Excise and Taxation Inspector through S.S.S. Board holding written test-25% marks reserved for Viva voce are excessive and arbitrary-Marks reserved for Viva voce should not be more than 15%. ii. P. Mohanan Pillai (Supra) reported as 2007(2) S.C.T. 604, in which the recruitment of Watchmen/Messenger/Attender was discussed it has been held as follows:-
Recruitment-Post of Watchmen/Messenger/Attender-50% marks kept for interview-sustainability-Held, duties to be performed on post herein are not such which require high intellectual ability or adjudging of particular trait of candidates-Allocation of marks for interview was in fact misused, contravened ratio laid by this Court in Ashok Kumar Yadavs case-Under facts and circumstances it is reasonable to draw inference of favouritism-Selection set aside. iii. Dr. Jagdish Chander (Supra) reported as 1992(3) S.C.T.409, wherein issue related to allocation of marks for selection of Asst. Rice Breeders was discussed, it was held as follows:-
Constitution of India, Articles 14 and 16-Selection/Interview marks-Allocation of marks-Allocation of 30% marks by way of interview for determining the merit is arbitrary and offends Articles 14 and 16 of the Constitution of India. iv. V. Arumugam (Supra) reported as 2010 (8) MLJ 142, appointment of Diesel Loco Drivers was considered and it was held as under:-
Appointment for post of Diesel Loco Drivers-100 candidates interviewed-Marks awarded in viva voce test in most arbitrary manner-Majority of selected candidates got very high marks in viva voce though they were awarded less marks for experience qualification-Minutes of selection committee contain no material regarding manner and method of awarding marks-Hence, selection process was not proper. v. Coal India Ltd. (Supra) reported as 1998(2) S.C.T. 452, it was held as under:-
Constitution of India, Articles 14, 16 and 226-Selection-Interview-Appointment-Interview marks-Written Test-Selection by way of written test and interview-60 marks for written test 35 for interview and 5 for extra-curricular activities-Candidates securing only 33 marks in written test granted 31 marks for interview and so like in other case whereas the petitioner who secured higher marks than most of the selected persons in written test granted lesser marks than such candidates for interview to ignore him-Reserving 40% marks at the discretion of the selection committee for interview and other activities resulted in arbitrariness on the part of the Committee-Applying method of conversion of marks on the basis of percentage of marks with 15% for interview and 80% for written test, petitioner comes much higher than the selected candidates appointed only on the strength of interview marks-Petitioner has been able to establish arbitrariness on the part of the Committee-Appellant-company directed to appoint the petitioner.
8. Learned counsel for the respondents has referred to Jagpal Singh Vs. State of Haryana that is related to the selection of constables in the Punjab Police wherein it was held that allocation of 30% of marks for assessing personality of the candidates is neither excessive nor arbitrary. However, it is seen that in this selection marks were awarded only for the PET (Physical Efficiency Test) and for interview. The Physical Efficiency Test was assigned 20 marks and 15 marks were assigned for the interview. Since in the present case, the drivers have been assessed specifically regarding their driving skill through Dug/Driving Test, the two cases are not comparable. Learned counsel has also referred to Anzar Ahmad Vs. State of Bihar but this was a selection for Unani Medical Officers and 100 marks were allotted for viva voce test and academic performance each. Considering the level at which the CTU drivers have to perform and the relevant skill for the job, we are of the view that assigning 30% marks for the interview was decidedly excessive.
9. So far as the allegation regarding appointment of general, SC and OBC candidates in excess of the numbers advertised, we observe that the advertisement of 10.11.2009 itself mentioned that during the intervening period of selection process, posts found lying vacant shall be included in the posts of this advertisement and shall be filled accordingly. Hence it cannot be said that the appointment of drivers in numbers exceeding the vacancies advertised was in excess of these vacancies. Moreover, some of the excess recruitment made in the General, SC and OBC category was on account of the vacancies assigned to Ex-serviceman not having been filled from this category. 08 vacancies of ESM from General category, 09 from SC category and 09 from OBC category i.e. 26 vacancies were diverted for appointment of non-ESM persons belonging to these categories. Diversion of vacancies from ESM category on account of non-availability of ESM is permissible keeping in view the fact that reservation of Ex-serviceman is horizontal reservation. We are supported in this view by judgment dated 06.08.2012 in Garima Jindals case (Supra).
10. In view of the discussion above, we conclude that there was no irregularity in appointing more persons as Drivers than as per vacancies declared vide advertisement dated 10.12.2009 and diversion of vacancies from the ESM quota for appointment of non-ESMs. However, the selection is flawed on account of interview having been given excessive weightage of 30%. Keeping in view the case law referred in para 7 above, for selection of Drivers, assignment of 15% marks for interview would have been reasonable. The respondent Department is therefore, directed to recast the merit list for the selection of CTU Drivers made in May 2010 after reducing weightage for the interview marks to 15% and the appointments be reviewed in the context of this revised merit list. The persons who have not been appointed till date whose names figure in the revised merit list may be appointed as per their merit position and category.
11. We are also conscious of the fact that some of the private respondents who were appointed as a result of selection made in May 2010 have already put in over 05 years service may not find place in the recast merit list. It is not their fault that they have been appointed through a defective selection process. Hence, since vacancies of drivers continue to arise in the CTU, the respondents are also directed to consider the retention of these persons if this is permissible in accordance with policy, rules and law, so that they are not rendered jobless.
12. The O.A. is disposed of with these directions. No costs.
(DR. BRAHM A. AGRAWAL) (RAJWANT SANDHU) MEMBER (J) MEMBER (A) Place: Chandigarh. Dated: 8 21 O.As. No.492/PB/2010 & 510/PB/2010 1