Central Administrative Tribunal - Chandigarh
Neelam vs Employees State Insurance Corporation on 28 August, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.60/1331/2017
Reserved on: 05.08.2024
Pronounced on: 28.8.2024
CORAM:
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Ms. Neelam, age 30 years wife of Sh. Varun Singh resident of
House No.636, Block-1, Near Gurudwara, Mangolpuri, New Delhi
110083 (Group-D)
.... Applicant
(By Advocate: Sh. Barjesh Mittal).
Versus
1. Employees' State Insurance Corporation Head Quarters Office
Panchdeep Bhawan, C.I.G. Marg, New Delhi through its Director
General.
2. Medical Superintendent, Employees' State Insurance
Corporation, Model Hospital, Lane No.2, SIDCO Industrial
Complex, Bari Brahmana, Jammu (J&K)-181133.
.... Respondents
(By Advocate: Sh. K. K. Thakur).
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ORDER
PER: RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
(ii) That the action of the respondent in introduction of category wise minimum qualifying marks/ qualifying standards with respect to advertisement issued in November-December 2012 (A-1) be quashed/ set aside.
(iii) Direction in the nature of mandamus be issued the respondents to shortlist the applicant on the basis of marks obtained by her in the combined merit list of all candidates (A-6) for the post of Auxillary Nurse Midwife and to call her for verification of documents and after scrutiny of the documents on being found eligible, to issue appointment letters to her on the post of Auxillary Nurse Midwife as per her merit without taking into consideration the criteria of category wise minimum qualifying marks/Benchmark with.
all consequential benefits in the interest of Justice.
2. Facts of the case according to the applicant are as follows.
Respondent No.2, MS, ESIC Jammu, issued a notice for recruitment of nursing/paramedical staff for ESIC Model Hospital, Jammu comprising of 12 different categories of posts in November/December 2012 (Annexure A-1). The details of number of posts, pay band as well as the requisite age limit, educational qualification, and experience as per statutory requirement of recruitment rules for the said different posts was categorically mentioned in the said advertisement. The last date for submission of online application was 17.12.2012. Applicant possessing the 3 qualification of 10+2 and diploma in Auxiliary Nursing/ Midwifery from Haryana Nurses Registration Council Chandigarh and also having 1 year experience in the concerned field (Annexure A-2). Applicant being eligible applied for the post of Auxiliary Nurse Midwife (Annexure A-3). After the closing of last date for submission of application, the respondent ESIC did not undertake any process for holding written online examination. Thereafter, vide notice dated 08.03.2016 (Annexure A-4), the respondent ESIC notified 19.03.2016 as the date for holding of written online examination with reference to the post advertised in the year 2012. The respondent authorities sent to applicant email mentioning her roll number and examination centre for giving the said online exam. The applicant appeared in the written online examination held on 19.03.2016 for the post of Auxiliary Nurse Midwife and the result for the same was declared by the respondents in 21.06.2016 (Annexure A-6) the applicant was declared meritorious and was at serial No.1 among the two candidates who were declared qualified for the post of Auxiliary Nurse Midwife.
3. Respondent No.1 issued office memorandum dated 02.01.2017 (Annexure A-8), after the exam was held on 19.03.2016, approving the category wise minimum qualifying marks/qualifying standards to be followed in the written examination for recruitment in different 4 ministerial/medical/nursing and paramedical and technical cadres. Respondent No.2 issued a list of candidates dated 06.02.2017 (Annexure A-7) finding place in the select list and shortlisted for verification for different nursing and paramedical posts on the basis of performance and written online examination. The name of the applicant did not find mention in the said list and against her post, it was remarked "No candidate appeared for the examination".
4. Respondents No.1 and 2 have filed written statement on 16.04.2018 and also amended written statement dated 14.03.2022.
5. In the preliminary submission, the respondents have taken ground of jurisdiction stating that earlier this Tribunal had jurisdiction over service matters of Jammu and Kashmir as well as Ladakh. However, vide notification dated 28.05.2020 U.T. of Jammu and Kashmir and Ladakh have been excluded from the jurisdiction of Chandigarh Bench. Hence this Tribunal has no jurisdiction over the matter.
6. On merits, the respondents have stated that the present O.A. deserves to be dismissed on the ground that the applicant is a candidate, who had applied against vacancy position for Para Medical Posts, advertised by the Hospital in the year 2012, and the exam for same was conducted on 19.03.2016. In fact, the Applicant is trying to mislead this 5 Tribunal. Well before commencement of examination for this recruitment, a corrigendum was issued by respondents specifying that ESIC reserved the right to fix minimum qualifying marks. The same was given wide publicity. The present application deserves dismissal on the ground that the applicant is estopped by her own act and conduct to challenge the selection process in which she willingly took part and on being unsuccessful has filed the instant Original Application. As per the settled proposition of law and as held by various Hon'ble Courts, a candidate after becoming unsuccessful for appointment to the said post cannot challenge the selection process in which he/she himself/herself participated and that too without any protest. The Applicant nowhere challenged the advertisement and selection process or criteria, before participating in the selection, which is sufficient enough to prove that she is not having any valid objection and no cause of action has arisen to her to file the present application. Some of the decisions of the Hon'ble Courts relied upon by the respondents to this effect are 2012(4) SCT 328 Simarjit Singh Tiwana Vs. State of Punjab decided by Punjab and Haryana High Court on 23.07.2012, 2002(2) Vol 2 SCT 1093 Chander Parkash Tiwari Vs. Shankuntia 6 Shukla decided by Hon'ble Supreme Court of India on 09.05.2002, (2009) 5 SCC 515, K. A. Nagamani Vs. India Airlines & Ors decided by Supreme Court of India on 27.03.2009, (2008) 4 SCC 515 Dhanjay Malik & Ors Vs. State of Uttaranchal & Ors decided by Supreme Court of India on 05.03.2008, AIR 2010 SC 3714 Ramesh Kumar Vs. High Court of Delhi, Yogesh Kumar Vs. UOI & Ors. decided on 16.08.2013 by the Hon‟ble Supreme Court.
7. According to respondents, the mode of selection for the post of Auxiliary Nurse Midwife (ANM) was modified vide corrigendum published in newspapers dated 20.08.2015 (Annexure R-1, 2, 3, 4 and 5) and also displayed on ESIC website on 25.09.2015, wherein it was clearly mentioned under the column 'Mode of Selection' that:-
"The candidates qualifying in Online Examination against the vacancies advertised by the respective Nodal Offices of the region shall be considered for final selection on the basis of their performance in the Online Examination".
The qualifying marks in the written examination were not fixed. However, it was clearly notified that candidates qualifying in the online examination shall be considered for final selection on the basis of their performance in the Online Examination. The proposal for fixing of Minimum Qualifying Marks/Qualifying Standard under different 7 categories was sent to the Ministry of Labour, Government of India, in the month of June, 2016. The issue was examined by the Ministry of Labour and Employment, Govt. of India. As per directions of Chairman, ESI Corporation (Minister, Labour and Employment, Govt. of India, the minimum qualifying marks/standard under different categories were fixed vide OM dated 02.1.2017 as under:-
Category Minimum qualifying
marks/Bench mark
UR 45%
OBC 40%
SC, ST & EX-Servicemen 35%
PWD-Person with 30%
Disabilities
8. In the amended written statement on behalf of
respondents No.1 and 2 dated 14.03.2022, according to respondents, the applicant has placed reliance on certain decisions to claim that the subsequent introduction of minimum cut of marks in the interview is not permissible in law. The applicant has claimed that in the advertisement for filling up various ministerial posts of Steno, UDC and MTS it was stipulated that qualifying marks will be 40% UR category and 35% reserve category. However, the fact remains that for ministerial posts also, directions were issued vide letter dated 07.3.2017 at Point No.2 for 8 following the minimum qualifying marks fixed vide OM dated 02.01.2017 as followed for paramedical and Nursing Cadre posts. The mode of selection for the post of ANM was modified vide notice dated 08.03.2016 notifying that the selection will be based on online examination.
9. The intention of the ESIC in fixing minimum qualifying marks for different categories was to get more meritorious candidates and there was no change in the Method of Selection. The objective in fixing of Bench marks was to have best hands for different posts in ESIC in order to have an efficient work force. ESIC has always prescribed minimum qualifying criteria in written examination for different posts and in this recruitment also, minimum qualifying criteria in the written examination was fixed for different categories in order to recruit best candidates on rational and reasonable basis. There is no change in the criteria of selection for the post of Auxiliary Nurse Midwife. The selection for the post in question was made on the basis of performance of the candidates in the online Examination and only those candidates who have qualified the examination were considered for selection. So far as fixation of Bench mark is concerned, it is the prerogative of the Department concerned to fix the qualifying marks for 9 different categories, with regard to technical and professional requirement for the post. It is incorrect to suggest that the Minimum qualifying marks/qualifying standard has been adopted at the final stage of selection. ESIC has always prescribed minimum qualifying criteria in written examination for different posts and in this recruitment also minimum qualifying criteria in the written examination was fixed for different categories in order to recruit best candidates on rational and reasonable basis. The applicant with Roll No.1000053894 had applied under SC category and secured 22.5 marks, out of total 125 marks. She secured 18% marks which is less than Minimum qualifying Bench mark of 35% for SC category in the computer based examination for the post of Auxiliary Nurse Midwife for Jammu & Kashmir Region in ESIC, as such she has not qualified for appointment to the post of Auxiliary Nurse Midwife. The result of the post was declared „no candidate appeared for examination‟ vide note dated 12.1.2017, whereas category wise minimum qualifying marks in written examination for Recruitment in different Ministerial, Medical, Nursing & Para-medical and Technical cadres have been fixed vide ESIC office memorandum dated 02.01.2017 (Annexure A-8). The 10 Hon'ble Supreme Court of India in Civil Appeal No. 6799/2013 titled Yogesh Yadav Vs. Union of India & Others decided on 16.8.2013 (Annexure R-4), has examined the issue whether fixation of Bench mark would amount to change in the criteria of selection in mid stream when there was no such stipulation in that regard in the advertisement, and has held that entire selection under taken with the selection criteria which was laid down at the time of recruitment process and the decision taken to give appointments only to those person who have secured minimum qualifying marks does not amount to changing the rules of the game. The Hon‟ble Apex Court has held that fixing the bench mark to recruit best candidate on rational and reasonable basis is clearly permissible in law.
10. We have considered facts and pleadings on record, submission, case laws relied upon. The issue of jurisdiction has been settled by the Principal Bench of the Tribunal vide its order dated 26.07.2024 in P.T. No.191/2024 stating that this Tribunal and not Jammu Bench will hear this case. So the issue will be decided on merits. Before we do so the issue of delay raised by the respondents in their preliminary submissions needs to be considered. We have examined the delay. We find result was declared in June 11 2016, however, minimum marks criteria notified vide OM dated 02.01.2017, after which cause of action arose on 02.01.2017. This OA was filed within one year on 07.11.2017, so in our view, there is no delay.
11. We have perused Annexure A-1, being advertisement for recruitment in Jammu region, also written statement and rejoinder filed by the applicant. Applicant‟s contention that R-1 to R-5 does not pertain to Jammu but to Ludhiana is correct. However, Annexure A-4, being notice dated 8.03.2016, notified date of common examination with reference to advertisement for recruitment of paramedical nursing cadre posts for 7 states including Jammu and Punjab, with reference to advertisement released in June 2012. So a common online exam was held on 19.03.2016, wherein ESIC under the column Scheme of Examination, in remarks column, reserved the right to introduce additional stage of examination which would be notified at a suitable time. The claim, that the applicant was not unsuccessful candidate but became ineligible due to fixation of minimum qualifying marks vide OM dated 02.01.2017 (Annexure A-
8), is not tenable. The corrigendum though relating to Ludhiana at Annexure R-5 dated 20.08.2015 enclosed with written statement filed by respondents prescribing mode of 12 selection, reads as follows:-
"The candidates qualifying in Written Examination (Out of total 125 marks) shall be considered for final selection on the basis of their performance in Written Examination (Out of total 125 marks).
ESIC shall have the discretion to fix minimum Qualifying Marks in the Written Examination (Out of total 125 marks). The recruitment of Paramedical & Nursing Staff notified in the above mentioned advertisement dated 06-12-2012 stands modified.
Other conditions/instruction of the advertisement shall remain unchanged."
This is dated 20.08.2015 well before the notification of date of written examination and specifically relates to paramedical and nursing staff. It is mentioned that ESIC shall have discretion to fix minimum qualifying marks and that the recruitment of Paramedical & Nursing Staff notified in the advertisement dated 06.12.2012 for Punjab region stands modified, there cannot be two different qualifying criteria for same exam for same cadre in different locations. Even in Annexure A-4, it was clearly mentioned ESIC reserves right to introduce additional criteria to be notified at a suitable time. So argument of the applicant that it was modified without any basis and amounted to changing the goal post after start of selection process, is not tenable.
12. It is obvious there cannot be two criteria one for Jammu 13 and other for Punjab and remaining States for selection through one common exam for common cadre. Any exam in our view is bound to have minimum passing marks. So the notification of qualifying marks subsequently is in our view part of the same process and cannot be considered arbitrary or additional criteria. The applicant has not been able to show how the judgment of the Hon‟ble Supreme Court in case of Yogesh Yadav is not applicable in her case. The Hon‟ble Apex Court has held that fixing of bench mark to recruit best candidate on rational and reasonable basis is permissible in law. Any undue sympathy to the applicant to direct her selection despite not possessing merit, in our view, would amount to interference with the right of employer to have a suitable candidate and will be discriminatory vis a vis other candidates. It can also compromise the quality of health services being provided by employer. The notice dated 08.03.2016 (Annexure A-4) was never challenged by applicant. Having accepted the terms and conditions that additional criteria can be introduced at a suitable time and consequently cut-off having been introduced later, the applicant cannot now term it as illegal or arbitrary. Not having met the cut-off, applicant cannot claim relief saying that rules have been 14 changed midway. So the arguments of the applicant are without any substance and not tenable and are rejected.
13. In our view, it is certainly prerogative of the employer to select the best as its employees by prescribing various eligibility criteria and ensure quality service as in this case of ANM in its hospital. It is not an additional criteria as the advertisement contained information about this possibility. It is not arbitrary either in light of Annexure A-4. Further, it is imperative for any test to have a cut-off point or minimum qualifying mark. Having already stated so in Annexure R-5 for Nursing staff specifically for Ludhiana or in light of Annexure A-4 common to all in 7 States including Jammu with reference to advertisement issued in 2012, it cannot be said that an additional criteria has been added, it is in our view continuation of the process of selection.
14. The Hon‟ble Supreme Court in the case of Yogesh Yadav has held that fixing the benchmark to recruit best candidates on rational and reasonable basis is permissible under law. This is a case of ANM which requires a skill set to take care of patients in the hospital adequately. Hence it is imperative to have a candidate with requisite skill set meeting the minimum benchmark level. The applicant say 15 she was totally unaware, as the corrigendum modifying mode of selection providing for fixing of minimum bench mark for paramedical and nursing staff, was issued well before examination and both Annexure R-5 and A-4 made it clear that some form of cut-off will be applied. Annexure A-1 at point (j) under „General Instructions‟ said applicant should keep visiting ESIC web site for important announcements and information throughout the selection process. So if the applicant had seen website, she would atleast be aware of minimum cut-off prescribed in Annexure R-5 the information being in public domain. So it is a reasonable presumption to believe that applicant would have known about mode of selection as prescribed in Annexure R-5.
15. It is not equitable either to have two sets of criteria for selection of candidates, selected against advertisement issued in 2012, through a common examination for the same cadre across 7 States (Annexure A-4). The employer can fix a criteria for selecting the best as its employees and any undue sympathy in this situation, with the applicant who does not meet the criteria is unwarranted. We find that selection process is fair and requires no judicial intervention. In the light of facts and circumstances 16 discussed supra and following the Hon‟ble Supreme Court decision in the case of Yogesh Yadav, we are of the view that the arguments raised by the applicant are not tenable.
16. In the light of above discussions, we are of the view that there is no merit in the O.A. and the same is dismissed. No order to costs.
(RASHMI SAXENA SAHNI) (RAMESH SINGH THAKUR) MEMBER (A) MEMBER (J) /kr/