Central Administrative Tribunal - Delhi
Rakesh Kumar vs Chairman on 4 May, 2009
Central Administrative Tribunal Principal Bench, New Delhi. OA-1968/2006 New Delhi this the 4th day of May, 2009. Honble Mr. L.K. Joshi, Vice-Chairman(A) Honble Mrs. Meera Chhibber, Member(J) Rakesh Kumar, S/o Shri Rangi Lal, A-1/51, Near Holy School, Gopal Nagar, Najafgarh, Delhi . Applicant (By Advocate: Dr. Surat Singh with Shri Jagdev Singh) Versus 1. Chairman, Staff Selection Commission, Northern Regional Office, Block No. 12, CGO Complex, Lodhi Road, New Delhi. 2. Director, Archaeological Survey of India, Janpath, New Delhi . Respondents (By Advocate: Shri S.M. Arif, for respondent 1 Ms. Rekha Palli, for respondent 2) O R D E R
Mr. L.K. Joshi, Vice Chairman (A) An advertisement was issued in the Employment News of 9-15th October, 2004 by the Staff Selection Commission, the first Respondent herein, for recruitment to 56 posts of Assistant Archaeologist in the Archaeological Survey of India, the second Respondent herein. The first Respondent recommended 42 candidates after ascertaining their eligibility as published in the advertisement and thereafter, on the basis of interview of the candidates for the aforesaid posts, made the appointment. The Applicant in this Original Application has challenged the validity of the entire selection process adopted by the first Respondent for the aforesaid posts on the ground that many of the candidates who have been selected are less qualified than the Applicant and that the entire selection has been done on the basis of interview despite the law laid down by the Honourable Supreme Court in a catena of judgements that selection should not be based on 100 per cent marks only for interview.
2. The facts of the case are narrated briefly hereunder.
3. The Applicant has obtained the degree of Master of Philosophy (History) from Kurukshetra University and he studied four papers of Archaeology in his post-graduation course. He also participated in the National Workshop on Computer Applications In Archaeology: New Opportunities organized by the Department of History of the Garhwal University, Uttaranchal. The Applicant also obtained a post-graduate diploma in Archaeology from the Institute of Archaeology run by the second Respondent. The Applicant has also participated in various training programmes in the field studies in the discipline of Archaeology. The Applicant applied for the post of Assistant Archaeologist, which was advertised in the Employment News, as mentioned above. The qualifications for the aforesaid post, as mentioned in the advertisement are given as under:
Educational Qualification:
Masters Degree in Ancient or Medieval Indian History from a recognized University or equivalent or M.A./M.Sc. with Archaeology or Anthropology from a recognized University or equivalent. Post Graduate Diploma in Archaeology from the Institute of Archaeology or equivalent. Desirable Qualification:
Experience in Archaeological filed work for a minimum period of one year.
4. The Applicant was called for the interview for the aforesaid post on 25.05.2005. The Applicant participated in the interview. The result of the interview was published in the Employment News in its issue dated 13-19th May, 2006. The Applicant was not among the selected candidates.
5. The learned counsel for the Applicant has strenuously urged that the process of selection adopted by the Respondents was illegal and arbitrary in as much as the selection was made solely on the basis of interview. Relying on the judgements of the Honourable Supreme Court in Indra Prakash Gupta Vs. State of Jammu & Kashmir and others, 2004 (5) SCALE 90 and Satpal & others Vs. State of Haryana &others, 1995 Supp (1) SCC 206, he would contend that not more than 25 per cent marks should be kept for interview, whereas in the impugned selection, 100 per cent marks had been kept for interview. It is further contended that the persons who were less qualified than the Applicant and who have only done one years diploma in Archaeology, have been selected by the Respondents. A feeble attempt has also been to insinuate that relatives of the officials of the second Respondent have been appointed on the aforesaid posts. It has also been urged on behalf of the Applicant that only 42 posts out of 56 posts available have been filled up in spite of the fact that eligible candidate like the Applicant are available.
5. The Respondents, per contra, have contested the cause of the Applicant by filing a counter affidavit and repelling the arguments of the Applicant. It has been stated on behalf of the first Respondent that the Applicant appeared for the interview, knowing fully well that the selection would be based only on interview. It was only after he was not selected that he is protesting about the mode of selection. It is the contention of the first Respondent that the Applicant was not selected for the aforesaid post because of his performance or lack of it before the Interview Board. Repelling the argument that 100 per cent marks for selection have been given only for the viva voce, the Respondents would urge that the selection was made only through interview and no written test for the aforesaid post was held by the first Respondent. It is stated in the counter affidavit of the first Respondent that the first Respondent short listed the candidates on the basis of their educational qualifications, academic record and percentage of marks etc. Since the first Respondent decided not to hold a written test, the selection was based solely on the performance of the candidates in the interview. The learned counsel defending the first Respondent would contend that the judgements of the Honourable Apex Court cited by the Applicant are distinguishable and not applicable in the instant case because the selection is not on the basis of composite marks in written test followed by interview. It is also submitted that the Applicant is a General category candidate and all posts advertised for General category candidates (28 posts) have been filled up. It is further contended that some posts have not been filled up because suitable candidates in the category of SC/ST/OBC could not succeed in the interview.
6. The second Respondent, in addition to the averments made by the first Respondent, has also contended that the essential qualification of post graduation in the filed of Archaeology prescribed in the advertisement or in the Recruitment Rules for the post of Assistant Archaeologist does not lay down that only a person with two years post graduate diploma in Archaeology would be eligible for appointment to the aforesaid post. It is urged that the persons holding one year post graduate diploma are also fully eligible for the post of Assistant Archaeologist.
7. We have considered the rival contentions and have perused the records placed before us with the assistance of the learned counsel for the parties.
8. The Applicant did not protest against the mode of selection only by interview till he discovered that he had not been found suitable for the post. The Honourable Supreme Court in Union of India and others Vs. S. Vinodh Kumar and others, (2007) 8 SCC 100 has held thus:
It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil, 1991 (3) SCC 368)(See also Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724.
9. The authority, which is making recruitment, is fully entitled to evolve its own procedure for selection. It cannot be said that selections made solely on the basis of interview would have so much of element of subjectivity that these would be unreliable. It would depend on what kind of selection is taking place. While for selection in an academic institution, an academic course would be more meaningful if it is based on written test, the same could not be said about the selection for a post in the government or under some other organization. If the agency, which is making recruitment, decides to make the selection only on the basis of interview after shortlisting the candidates on the basis of educational qualifications etc, the method cannot be called in question unless illegal practices or bias is alleged and proved. The matter is no longer res integra and has been examined by the Honourable Supreme Court in several cases. In Mahesh Kumar and another Vs. Union of India and others, 151 (2008) DLT 353 (Delhi High Court), the case law has been thoroughly discussed and analysed. We can do no better than reproduce the same:
22. In Praveen Singh v. State of Punjab (supra) relied on by the petitioners, the Supreme Court though had held that viva test cannot be the sole criterion for selection to the posts of Block Development and Panchayat Officer but that was on account of the fact that interview being sole criteria was made contrary to the rules. In this Case Commission had made viva voce as the sole criterion for selection and this was contrary to the scheme which had been laid down in the rules. Rather rules and the information sheet had clearly specified that aggregate marks would be considered and it was no where mentioned in the rules that the written examination would be considered only as an elimination round. It was on these facts that the Court held that interview should not be the sole criterion for selection. But in the present case the rules nowhere lay down that the aggregate marks would be considered. Also in the call letters to the petitioners it was clearly specified that `Each test/event will be elimination round for the subsequent events. In this case the Court never held that Interviews should never be the sole criterion for selection to services. Rather it was observed that since the post of Development Officer does not require mature personality, it was not appropriate to recruit on the basis of interview only. The Court in para 13 stated, Of course, there are posts and posts, where interviews can be a safe method of appointment, but to the post of a Block Development Officer or a Panchayat Officer wherein about 4500 people applied for 44 posts, interview cannot be a satisfactory method of selection though it may be a part selection process. The Court in this case also stressed the importance of viva voce tests. Paraphrasing its order in Ashok Kumar Yadav v. State of Haryana (supra) the Supreme Court observed : There can therefore be no doubt that the viva voce test performs a very useful function in assessing the personal characteristics and traits and in fact, tests the man himself and is therefore, regarded as a important tool along with the written examination.
23. Another case relied on by the petitioners is Mohinder Sain Garg v. State of Punjab and Ors (supra) where it was held that the percentage of viva voce test in that case at 25% of the total marks was arbitrary and excessive. It was also held that viva voce test could not be totally dispensed with, but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more than 15 percent of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for a composite process of selection namely written examination and interview. A plain reading of the judgment makes it clear that the Court in this case held so on the basis of two factors- (i) that around 1200 candidates were called for interviews against 54 vacancies, and (ii) selection rules provided for a composite process of selection namely written examination and interview. The case of the petitioners in contradistinction differ on both the factors. In the case of present respondents against 31 vacancies, 139 candidates each of whom had qualified each of the previous stages were interviewed, which is well within the approved norm of calling 5 candidates for 1 vacancy. Also the selection rules clearly laid down that each/event will be elimination round for the subsequent events. In the circumstances it cannot be held that the Supreme Court had held that in no case the weightage of interview cannot be more than 15 per cent. In Inder Prakash Gupta v. State of J&K and Others (2004) 6 SCC 786, another case relied on by the petitioners, appointments to the post of lecturers were in question. Appointments to the said post were governed by statutory rules called the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. The said rules did not have any provision for a viva voce test, yet the Public Service Commission kept interview as one of the stages of the recruitment process and allotted 100 marks to the interview out of a total of 140 marks and, therefore, the Supreme Court had held the selection process to be arbitrary and not merely on the ground that 100 marks out of 140 marks were allotted for interview. But in the case of the petitioners it is not their contention that the recruitment procedure is contrary to the statutory rules laid down for selection.
24. In another judgment of the Supreme Court relied on by the petitioners, P.K. Ramachandra v. Union of India (supra), the ASRB, an independent agency for recruiting personnel for IASRI had laid down an additional qualification of obtaining at least 40 marks in the viva voce to be eligible for being admitted in the merit list. Rules 13 and 14 of the rules framed by the ICAR on August 19, 1977, which governed the selection process, had no such provision and the act of ASRB amounted to a modification of the Rules. There was no such power in the ASRB to add to the required qualifications. It was on these facts that the Court held the prescription of minimum marks in the viva voce test was illegal. However, in the case of the petitioners the candidates were required to qualify each of the four stages of the recruitment process at the prescribed standards. The scheme of the examination had been approved by the Secretary Generals of both Lok Sabha and Rajya Sabha. Also nothing has been placed on record to show that the 50% cut-off marks in personal interview has been prescribed by the Joint Recruitment Cell contrary to the selection scheme. In Ashok Kumar Yadav and Others etc. v. State of Haryana (supra) the Supreme Court had decided it considering the spread of marks for viva voce being so enormous compared with the spread of marks for written examination, that the viva voce test tended to become the determining factor. The questions whether minimum qualifying marks could be prescribed for a viva-voce examination or not and whether viva voce could be the sole criterion for selection to a particular post did not fall for consideration and therefore, it is distinguishable. Rather apex court had held that there cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against written examination as the requirement vary from service to service and host of other factors which are material. The Supreme Court had observed, There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter of determination by experts. The Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy,J. in Liladhars case exaggerated weight has been given with proven or obvious oblique motives. The Supreme Court in the case of Ashok Kumar Yadav has also held that While a written examination assesses a candidates knowledge and intellectual ability, a viva voce test seeks to assess a candidates overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidates initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error by a viva voce test, much depending on the construction of the interview board. There can therefore be no doubt that the viva voce test performs a very useful function in assessing personnel characteristics and traits and, in fact, tests the man himself and is therefore regarded as an important tool along with the written examination.
25. In Krishan Yadav and Another v. State of Haryana and others (supra) relied on by the petitioner, the recruitment process was vitiated by fraud. A CBI investigation had revealed acts of favoritism, selections without interviews, ghost interviews, tampering with final documents etc. In contradistinction the process of selection has not been impugned by the petitioners on any of these ground. Another judgment relied on by the petitioners, A.I.I.M.S. v. Dr. A.M.V.R. Narendra, the Division Bench of this Court was concerned with the issue of admission to an academic course. The case of the petitioners is of appointment to service. The provision for marks for interview test need not and cannot be the same for admission to colleges and entry in to public service. In Kiran Gupta v. State of U.P (supra) the Supreme Court had observed that the decisions with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions will not afford a proper guideline in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. In Kiran Gupta (supra) one of the issues before the Apex Court was whether, the selection of candidates for the post of Headmaster solely on the basis of interview could be said to be arbitrary. The Supreme Court had observed It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this court, selection solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview.
It depends on several factors and the question of permissible percentage of marks for an interview test has to be decided on the facts of each case. In the AIIMS case (supra) the Division Bench of this Court held that 100% weightage cannot be given to the interview and that the interview cannot be sole determining factor in the selection process for admission to the course of DM(CH). This was a case where selection process for admission to a course was challenged and therefore the ratio of the same is not applicable to the present case as the present case relates to the procedure for selection to a service.
The Division Bench in fact had carved out a distinction between selection to a post and selection to an academic course.
10. It is not the Applicants case that the prescribed mode of selection in the instant case also included written examination. The mode of selection has also not been prescribed in the advertisement, copy of which has been annexed with the Original Application. It is stated by the first Respondent in the counter affidavit that :
the selection for the post of Assistant Archaeologists were made through Interviews only and no written test was held by the Commission in this regard. It is further submitted that as per the Mode of Selection as mentioned in the Notice of the said Recruitment, candidates fulfilling the minimum prescribed qualifications will be short-listed on the basis of their educational qualifications, academic records, percentage of marks etc., or through screening test.
It is further submitted that the candidates, thus short listed, may be required to undergo a written proficiency test wherever applicable. It is pertinent to mention here that in the instant selection, it was decided by the Commission to shortlist the candidates on the basis of their educational qualifications and the short-listed candidates were called for Interview The selection solely by interview is, thus, not contrary to any provision in the recruitment rules for the post or contrary to anything stated in the advertisement, on the basis of which the candidates, including the Applicant, applied for the post.
11. We also note that the number of posts for selection in the case in hand were only 56. Although, the number of the persons, who applied has not been mentioned, yet in view of the fact that candidates for interview were shortlisted, as mentioned above, and interviews were held on three days from 20th June to 22nd June, as stated by the first Respondent in the counter affidavit, the number of candidates could not have been unmanageably large for interview. In Satpal Vs. State of Haryana (supra), the Honourable Supreme Court observed that in the selection of Patwaris, various selection committees interviewed from 400 to 600 candidates every day, thus devoting not more than two minutes to each. The selection was set aside because of this fact combined with the fact that 85 per cent marks were reserved for interview. In the case before us, the numbers are not so overwhelmingly large as to reduce the interview to a farce. The Applicant has also not averred that too little time was given for interview or that he was rushed.
12. In Inder Prakash Gupta Vs. State of Jammu & Kashmir & Ors. (supra), the State Public Service Commission framed Jammu & Kashmir Public Service Commission (Business & Procedure) Rules, 1980. These were not statutory rules. Rule 51 of the aforesaid Rules prescribed procedure for assessment at an interview. The method of marking was contrary to statutory rules called Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979. Rule 8 of the aforesaid Rules provided criteria for selection different from Rule 51 adverted to above. Some of the selected candidates did not have the requisite eligibility criterion of having put in two years as Registrar. One candidate was overage. While the challenge was to the application of Rule 51 of the Public Service Commission Rules by ignoring Rule 8 of Medical Service Recruitment Rules, a further contention was raised by the writ petitioner that 100 marks earmarked for viva voce in rule 51 was unreasonable and excessive, while only 40 marks had been earmarked for candidates record. The Honourable Supreme Court noted the violation of statutory Rule 8, as mentioned above and observed that the Public Service Commission must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action, which would violate the statutory rules. In regard to the marks for viva voce, the Honourable Supreme Court observed thus:
35. It is true that for allocation of marks for viva voce test, no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India.
. . . .
39. We would proceed on the assumption that the Commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as regards qualification, experience, etc. but could also take viva voce test. But marks allotted therefor should indisputably be within a reasonable limit. Having regard to Rule 8 of the 1979 Rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must, therefore, be suitably recast. This case is thus, also distinguishable from the case in hand in as much as in the present case there are no rules akin to those mentioned in the above cited case and the sole mode of selection is interview, not even the candidates record.
13. Although, as we have pointed out, some attempt has been made to tarnish the selection process by insinuating that relatives of the employees of the second Respondent have been selected, yet this is only half-hearted and no foundation of wrong doing has been laid. If malafide has been alleged, it has to be proved to the hilt. We are unable to accept this argument.
14. It is also the prerogative of the employer to fill as many posts as it wishes to do. It is not necessary that all the posts which have been advertised should be filled up. Moreover, in the instant case, all the posts in the unreserved category have been filled up and the Applicant belongs to the unreserved category. The Respondents have not filled all the posts in the reserved category as suitable candidates in these categories were not available. The Applicant may have great pride in his intellectual attainments, yet it would not mean that the candidates who have been selected are in any way inferior to him. If the eligibility criterion accepts a person with one years diploma to be also eligible for the post, then the Applicant would not get a superior claim over such a candidate merely because he had two years diploma. We are not impressed by the argument that the Applicant is in any way superior to other candidates because of his academic qualifications, advertence to which has been made in the preceding paragraphs. The selection is on the basis of performance before the Interview Board subject to the candidates meeting the eligibility criteria laid down in the recruitment rules. We have already noted in the preceding paragraphs that the Applicant knew about the modalities of the selection by the first Respondent and appeared for the interview without representing about the procedure adopted. It is only after he did not succeed in the interview, he has come before us in this OA.
15. On the basis of above discussion, we find no merit in the OA, which is dismissed. In the circumstances of the case, there will be no order as to costs.
( Mrs. Meera Chhibber ) ( L.K.Joshi )
Member (J) Vice Chairman (A)
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