Central Administrative Tribunal - Delhi
Balraj vs Union Of India Through on 23 October, 2013
Central Administrative Tribunal
Principal Bench
OA No.203/2013
Reserved on: 23.07.2013
Pronounced on: 23.10.2013
Honble Mr. V. Ajay Kumar, Member (J)
Honble Dr. Birendra Kumar Sinha, Member (A)
Balraj
S/o Sh. Dhanpat Singh
r/o Vill & PO Barhana,
Pana Gugnan, The. Beri,
Distt. Jhajjar (Haryana). Applicant.
(By Advocate : Sh. Yogesh Sharma)
Versus
1. Union of India through
Secretary
Ministry of Defence,
Govt. of India,
South Block, New Delhi.
2. The Director
Centre for Personnel Talent Management
Defence Research & Development Organization (DRDO)
Govt. of India, Ministry of Defence,
Metcalfe House Complex,
Delhi-54. . Respondents.
(By Advocate : Sh. T. A. Ahmed)
: O R D E R :
Dr. Birendra Kumar Sinha, Member (A) :
In the instant OA, the applicant challenges the action of the respondents in not selecting him to the post of Civil Driver A despite the fact that he had secured the highest marks in written and was eligible to be selected as per the aggregate marks of the interview. The applicant has further questioned the action of the respondents in making changes in the recruitment procedure before the same has been notified.
2. The applicant has sought for the following reliefs:
(i) That the Honble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents fixing the qualifying marks in the interview is totally illegal and arbitrary and consequently, pass an order directing the respondents to consider the applicant for his appointment to the post of Civilian Driver A on the basis of combined merit of written marks as well as interview marks with all consequential benefits from the date of appointment of other two selected persons.
(ii) That the Honble Tribunal may graciously be pleased to pass an order of quashing the result of the applicant in which the applicant has been declared failed in interview.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
3. The case of the applicant, simply put, is that he applied for the post of Civil Driver-A in response to the Advertisement No.CEPTAM-05 (March 2012) issued by the Respondent No.2 with closing date of 9.04.2012. He was called for the written examination and had secured 112 marks, being the highest marks therein. Further he was awarded the lowest marks i.e. 46 in the interview. The applicant was declared unsuccessful despite the fact that no cut off marks had been prescribed for the interview and that in aggregate he secured enough marks to figure amongst the list of selected candidates. The applicant has contended that the selection process cannot be altered once the process of selection have commenced and prescribing the minimum marks during and after the process of selection is illegal. The applicant relied upon the case of Hemani Malhotra vs. High Court of Delhi (2008) 7 SCC 11 and supported by a series of other decisions including Dir. S.C.T.I. for Med. Scie & Tech & Anrs. Vs. M. Pushkaran reported in JT 2007 (13) SC 315. The applicant has also challenged the action of the respondents in prescribing the minimum cut off marks for interview as the same has been held illegal in the case of Inder Prakash Gupta Vs. State of J & K & Ors. 2004 (6) SCC 786.
4. The respondents have filed counter affidavit wherein they have resisted the OA on the ground that the terms of the advertisement itself included a clause that the process of selection was subject to the modification. The cut off marks had been introduced in the selection process. The DRDO being the recruiting organization, it was one of the requirements of the job that the person has to qualify skill test as well as interview with minimum cut off marks so that these germane could be assessed additionally to the knowledge of the applicant during the written examination. The respondents have further submitted that the final selection is made based on Pooled Merit which is arrived at by aggregate of marks obtained in the written examination with those scored in the interview. The list of Pooled Merit is only prepared in respect of such candidates who have qualified in the interview. Therefore, the respondents have submitted that the OA does not hold any substance and is fit to be dismissed.
5. We have carefully gone through the pleadings and the documentary evidence as provided by the parties, the oral submissions of the rival counsels and on the basis thereof, we find that the following two issues emerge out for our consideration:-
Whether alteration of the conditions of the advertisement is covered by the clause inserted by the respondents regarding varying the conditions of recruitment?
Whether the respondents were justified in prescribing the qualifying marks for the interview.
6. The advertisement includes the post code 0601 for Civilian Driver A which prescribes as follows:
Age :Between 18 to 27 years, Pay Band: PB-1, 5200-20200, Grade Pay : 1900 EQR : X class pass or equivalent qualification by the Central/State Governments and possessing (i) A valid driving license for Two/Three wheelers and light and heavy vehicles (both) and (ii) One year experience of driving after acquiring the license. The Scheme of Examination under 10 (d) provides:-
(d) For civilian Driver A, Security Assistant A, Fire Engine Driver and Fireman : The written test will consist of (i) 100 Questions on General Awareness, General Reasoning, Arithmetic, Numerical Ability (ii) 25 job related questions and (iii) 25 Questions on Hindi or English Language.
7. Regarding the mode of selection, three stages have been provided. In the first instance, there is a written examination. The screening of the documents is made at the time of documents verification. In the next stage, the skill test is taken for which it is necessary to qualify. In the third stage, an interview is being held for the purpose of testing the personality of the applicant. The list is prepared on the basis of the Pooled Merit which is, as explained earlier, is the aggregate of marks in the written examination and the interview. Item 14 of the Advertisement provides as under-
14. MODE OF SELECTION: (a) The candidate will be called for written examination without scrutiny. However, the Original Certificates pertaining to Essential Qualification (EQR) and other relevant documents will be examined/verified completely at the time of Document Verification/Interview. b) Candidates will be shortlisted on valid criteria as prescribed and adopted by CEPTAM. The final selection will be based on pooled merit of post/category/sub-category of the candidate and on the basis of marks obtained in Written Examination and Interview taken together. It is reiterated that it is mandatory for shortlisted candidates to pass the prescribed skill/trade/physical/medical tests, as per the norms, wherever applicable. c) The mode of selection may change depending on the contingencies.
8. However, on simple examination, we merely find that there is no mention of there being any qualifying or cut off marks for the interview. The general Guidelines of DOP&T entry test provides as under:-
3. All the candidates applied against the advertisement will be called for written examination and scrutiny of application forms regarding their eligibility for the post will be done after drawing the merit of written examination. However, incomplete applications form, applications not on proper formats will be rejected.
4. The Question papers for all posts will consist of 150 multiple choice objective type questions, as per the scheme of examination published in the advertisement and it will consist of 150 marks (one mark for each question and no negative marking).
5. Candidates meeting eligibility criteria will be called for documents verification, trade/skill test and interview, based upon their ranking in written examination in a ratio of 1:6 (one vacancy against six shortlisted candidates for STAs/Assistant Hindi, and in ratio 1:8 for other posts where skill/trade test is mandatory (the last candidate securing equal marks in the bracket will also be included). Candidates called for document verification will be interviewed only if found eligible and documents are in order. Qualifying marks for the candidates in the interview shall be 45% for SC/ST and 50% for others.
6. xxxx xxxx xxxx
7. The final nominations of the eligible candidates shall be made on the basis of pooled merit drawn from written examination and interview which shall comprise of 85% from written examination and 15% of interview marks provided that candidate have also passed the trade/type test wherever applicable.
9. It is quite clear from the above that there is no mention of cut off marks for the interview. Instead it is clearly mentioned that the written examination shall comprise 85% and 15% marks will be provided for the interview. There is absolutely no mention of there being any cut off marks or qualifying marks for the interview. The applicant has also provided a list of marks of the candidates within the zone of consideration, from the perusal of which, it appears that the applicant had secured 112 marks out of 150 marks in the written examination, 46 marks out of 100 in the interview, his total score being 70.36 which still happens to be the third highest in that list of candidates. For the sake of illustration, this list is being reproduced as under:-
Sl.
No. Name Marks in Written Examination Out of 150 Marks in Interview Out of 100 Total Score
1. Parveen Kumar 86 65 58.48
2. Pardeep Kumar 85 78 59.87
3. Nadeem Uddin 90 82 63.30
4. Manoj Dabas 94 83 65.72
5. Harish V. Namboothri 87 75 60.55
6. Devesh Kumar Sharma 88 58 58.57
7. Deepak Kumar 84 70 58.10
8. Hansraj 72 90 54.38
9. Dara Singh meen 85 94 62.27
10. Dinesh Yadav 93 50 60.20
11. Sammy Yadav 90 86 63.90
12. Sandeep 93 80 54.70
13. Bharosi Ram Meena 83 93 60.98
14. Babu Ram Meena 81 85 58.65
15. Rajesh Kumar Yogi 87 55 57.55
16. Sumit 109 60 70.77
17. Surjeet 94 94 67.37
18. Yovraj 81 94 60.00
19. Chandra Prakash 83 69 57.38
20. Bhupender 111 85 75.65
21. Bhagwan 94 93 67.22
22. Arjun Kr. Purohit 78 94 58.30
23. Amit Tehlan 99 87 69.15
24. Amit Kumar 91 72 62.37 Bal Raj (Applicant) 112 46 70.36
10. In the case of Hemani Malhotra (supra), the High Court of Delhi through Registrar General issued an advertisement inviting applications from eligible candidates for 16 vacant posts to be filled up by direct recruitment to Delhi Higher Judicial Service with the stipulation that there would be one paper of 250 marks and interview/viva voce with the minimum qualifying marks of 55% for general candidate and 50% for Scheduled Casts and Scheduled Tribes. The respondent-High Court did not declare the result. Interview was held after 7 postponements. In the meantime, the selection committee met to prescribe minimum marks for the viva voce and full court decision was obtained in this regard. On the aggregate basis only 3 candidates were selected and the applicant was not selected. The applicant had challenged non declaration of result on the ground that she had been excluded from the appointment on the basis of cut off marks prescribed at the viva voce test which was illegal and arbitrary to the principles laid down by the Supreme Court. It is apt here to quote directly from the judgment of the Apex Court in the case of K. Manjusree vs. State of A.P. and Anr. MANU/SC/0925/2008, which reads as under:-
16. The Rules did not prescribe any procedure for selection. When the posts were advertised, the only criterion for selection that was mentioned was that the selection will be by holding a written examination followed by an interview. The manner of holding written examinations and interviews, the marks for written examination and interview, whether the candidates should secure any minimum marks in the written examination and/or interview, were all yet to be decided.
17. As per the practice followed by the High Court (standing orders referred to above) the entire process of recruitment of Distrit Judges was to be dealt with by the Administrative Committee and the decisions of the Administrative Committee were placed before the Full Court for its consideration and approval. The Administrative Committee at its meeting held on 30.11.2004 considered the method and manner of recruitment to be adopted in regard to the said recruitment and took the following three decisions: (i) that the written examination will be held on 30.1.2005 simultaneously at four centers; (ii) that the marks for the written examination shall be 75 and for oral examination 25; and (iii) that the minimum qualifying marks for OC/BC/SC/ST shall be as prescribed earlier. The first two decisions are self contained and clear. In regard to the third decision, it becomes necessary to ascertain what was the minimum qualifying marks for OC/BC/SC/ST which had been prescribed earlier. There was no general prescription of guidelines or norms or criteria for holding the written examination and interview marks therefore. The procedure to be applied in regard to each recruitment was laid down separately by the Administrative Committee as and when the recruitment was done. When the Administrative Committee decided on 30.11.2004 that the minimum qualifying marks for OC/BC/SC/ST shall be as prescribed earlier it obviously referred to what was prescribed when the previous recruitment was made in 2001-2002. The High Court has produced the relevant minutes relating to such earlier recruitment. It is seen that the Administrative committee had laid down the following method and manner for the recruitment of six posts of District & Session Judges (Grade II) by its resolution dated 24.7.2001 (approved by the Full court on 16.8.2001):
Considered and resolved that the mode of examination be by way of written test for 75 marks and oral interview for 25 marks and the minimum qualifying marks for open category is 50 marks, for Backward Classes (B.Cs) 40 marks and Scheduled Tribes (S.Ts) 35 marks in the written examination and the same ratio will apply for oral interview also.
The minimum qualifying marks for the written examination was subsequently amended/corrected by Administrative committee at its meeting held on 21.2.2002 (approved by Full Court on 6.3.2002) as follows:
Considered and resolved to correct the typographical error occurred in the resolution of the Administrative Committee Meeting held on 24.7.2001 mentioning 50 marks, 40 marks and 35 marks instead of 50 percent, 40 percent and 35 percent i.e. the minimum qualifying marks for Open Category is 50 percent, for Backward classes (B.Cs) 40 percent and Scheduled Tribes (S.Ts) 35 percent in the written examination.
18. Let us try to analyse and find out the combined effect of the rsolutions dated 24.7.2001 and 21.2.2002. The resolution dated 24.7.2001 prescribed the following marks for the written examination and the interview:
(a) The marks for written examination was 75 marks and the minimum qualifying marks was 50 marks for open category, 40 marks for backward classes and 35 marks for Scheduled Tribes;
(b) The marks prescribed for interview was 25 marks and the minimum qualifying marks for interview was 16.67 marks for open category, 13.33 marks for Backward Classes, and 11.67 marks for Scheduled Tribes (by applying the ratio that was prescribed for written examination).
The resolution dated 24.7.2001 was amended on 21.2.2002 and it was decided to have only minimum qualifying marks in the written test and not for the oral examination. This is evident from the subject placed for consideration on 21.2.2002 and the resolution on the subject. The subject for consideration was : Minimum qualifying marks in the written examination. The resolution stated that the minimum qualifying marks was 50% for open category, 40% for Backward Classes and 35% for Scheduled Tribes in the written examination. It did not prescribe any minimum for the interviews. Nor was it understood as prescribing any minimum marks for the interview. That the Administrative committee and Full Court intended and in face proceeded on the basis that there would be no minimum marks for the interview is evident from the fact that in regard to recruitment of 6 posts in 2001-2002, the minimum qualifying marks of 50%, 40% and 35% were applied only for the written examination and no minimum qualifying marks were applied in respect of interviews. We are informed that for the 2001- 2002 selections, the procedure adopted was that all candidates who passed the written examination by securing the minimum marks were called for interview and the interview marks were added to the written examination marks for the purpose of preparing the merit list and for the purpose of selection. No minimum marks were applied for interview and no candidate was excluded on the ground of not securing any minimum marks in the interview. It is also not in dispute that even in the earlier selections (held prior to 2001-2002) the High Court had applied minimum marks for interviews. Therefore the only inference is that when the Administrative Committee resolved on 30.11.2004 that the minimum qualifying marks for OC/BC/SC/ST shall be as prescribed earlier what it meant and provided was that there will be minimum qualifying marks for the written examination only, that is 50% for OC, 40% for BC and 35% for ST. It may however be mentioned that though minimum of 35% was prescribed only for ST candidates in regard to 2001-2002 selections, that percentage was adopted and applied in the written examination for both SC and ST candidates by the resolution dated 30.11.2004.
19. The Administrative Committee of the High court (Chief Justice and five senior Judges) as also the Interview Committee consisting of five Judges (the Chief Justice and four other Judges) all along intended, understood and proceeded on the basis with reference to the current selection that minimum percentage was applicable only to written examination and not for interviews. This is evident from the manner in which interviews were conducted and merit list and selection list were prepared by the Interview Committee and approved by the Administrative Committee. This shows that the Interview Committee conducted the interviews on 13th, 14th, 16th, 17th, 18th, 20th, 24th and 31st of March, 2006 on the understanding that there were no minimum marks for interviews, that the marks awarded by them in the interview will not by itself have the effect of excluding or ousting any candidate from being selected, and that marks awarded by them in the interviews will merely be added to the written examination marks, for preparation of the merit list and selection. We are referring to this aspect, as the manner of conducting interviews and awarding marks in interviews, by the five members of the interviewing committee would have been markedly different if they had to proceed on the basis that there were minimum marks to be secured in the interview for being considered for selection and that the marks awarded by them would have the effect of barring or ousting any candidate from being considered for selection. Thus, the entire process of selection - from the stage of holding the examination, holding interviews and finalizing the list of candidates to be selected - was done by the Selection committee on the basis that there was no minimum marks for interview. To put it differently the game was played under the rule that there was no minimum marks for the interview. In the case of Liladhar vs. State of Rajasthan & Ors., AIR 1981 SC 1777, it was their basic contention that no fresh procedure should have been inserted after the advertisement had been issued and the process of training had commenced. In this regard, the Honble Court relied upon the decision taken by it in the case of K. Manjusree vs. State of A.P. and Anr. MANU/SC/0925/2008 had observed as under:-
29. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
30. It was submitted that Administrative Committee and Interview Committee were only delegates of the Full Court and the Full Court has the absolute power to determine or regulate the process of selection and it has also the power and authority to modify the decisions of the Administrative Committee. There can be no doubt about the proposition. The Administrative Committee being only a delegate of the Full Court, all decisions and resolutions of Administrative Committee are placed before the Full Court for its approval and the Full Court may approve, modify or reverse any decision of the Administrative Committee. For example when the resolution dated 30.11.2004 was passed it was open to the Full Court, before the process of selection began, to either specifically introduce a provision that there should be minimum marks for interviews, or prescribe a different ratio of marks instead of 75 for written examination and 25 for interview, or even delete the entire requirement of minimum marks even for the written examination. But that was not done. The Full Court allowed the Administrative Committee to determine the method and manner of selection and also allowed it to conduct the examination and interviews with reference to the method and manner determined by the Administrative Committee. Once the selection process was completed with reference to the criteria adopted by the Administrative Committee and the results were placed before it, the Full Court did not find fault with the criteria decided by the Administrative Committee (as per resolution dated 30.11.2004) or the process of examinations and interviews conducted by the Administrative Committee and Interview Committee. If the Full Court had found that the procedure adopted in the examinations or interviews was contrary to the procedure prescribed, the Full Court could have set aside the entire process of selection and directed the Administrative Committee to conduct a fresh selection. The resolution dated 30.11.2004 was approved. It did not find any irregularity in the examination conducted by the Administrative Committee or the interviews held by the Selection Committee. The assessment of performance in the written test by the candidates was not disturbed. The assessment of performance in the interview by the Selection Committee was not disturbed. The Full Court however, introduced a new requirement as to minimum marks in the interview by an interpretative process which is not warranted and which is at variance with the interpretation adopted while implementing the current selection process and the earlier selections. As the Full Court approved the resolution dated 30.11.2004 of the Administrative Committee and also decided to retain the entire process of selection consisting of written examination and interviews it could not have introduced a new requirement of minimum marks in interviews, which had the effect of eliminating candidates, who would otherwise be eligible and suitable for selection. Therefore, we hold that the action of Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible.
31. The Division Bench of the High Court while considering the validity of the second list, has completely missed this aspect of the matter. It has proceeded on an erroneous assumption that the resolution dated 30.11.2004 of the Administrative Committee prescribed minimum marks for interviews. Consequently, it erroneously held that the Administrative Committee had acted contrary to its own resolution dated 30.11.2004 in not excluding candidates who had not secured the minimum marks in the interview and that the Full Court had merely corrected the wrong action of the Administrative Committee by drawing up the revised merit list by applying marks for interview also. The decision of the Division Bench therefore, cannot be sustained.
11. In the case of Dir. S.C.T.I. for Med. Scie & Tech & Anrs. Vs. M. Pushkaran (supra), the question was different as to whether the respondent had any legal right for being appointed against the post of three security guards in the appellate institute where three persons were appointed and one of them declined. However, the applicant was not offered appointment in that case. The Honble Court has held that 18. The application of law would, therefore, depend upon the fact situation obtaining in each case. The judgment of the High Court in view of the aforementioned authoritative pronouncements cannot be said to be perverse. The respondent was to be offered with the appointment at a point of time when no policy decision was taken. There was, thus, no reason not to offer any appointment in his favour. Why the select panel was ignored has not been explained. Even the purported policy decision was not in their contemplation. We, therefore, do not see any reason to interfere with the impugned judgment. This case is not applicable to the facts of the instant case wherein the issues are different.
12. In the case of Inder Parkash Gupta Vs. State of J&K & Ors. 2004 (6) SCC 786, the selection of two of the selected candidates was challenged by the applicant-Respondent No.3 on the ground of not having the requisite experience. The Honble Apex Court in this case as held as under:-
36. 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 therefore should indisputably be within a reasonable limit. Having regard to Rule 8 of 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.
13. From the events and facts enumerated above, it emerges clearly that the advertisement and the guidelines did not prescribe any of the cut off marks. These have been subsequently included after the process of selection had taken place. It is not be lost sight of that an advertisement of this nature is an invitation in rem for all eligible candidates. Once the rules were changed regarding qualifying marks or noticed after the process had begin, therefore, the case of Hemani Malhhotra (supra) is clearly attracted to the facts of this case. It cannot be ascertained from the pleadings and the material on record that at what stage the qualifying marks in the interview were introduced. One thing is, however, clear that these were introduced post examination. Had it been otherwise a corrigendum could have easily corrected the position. Even then it attracts aforecited case and draws from this logic. We hold in no unambiguous terms that the rules have been changed midway or even more than mid way after the test had commenced.
14. We also take full cognizance of the fact that the ratio prescribed in the advertisement was 85:15. However, the ratio as it emerges 150 marks were allotted for written examination and 100 for the interview which is against the ratio, this also cannot be changed. If we stick to the old ratio, we think that the applicant would be figured at the very top of the Pooled Merit.
15. The second issue has already been partly covered while deciding the earlier issue. The ground that the respondents have pleaded on account of requirement of the post is justifiable enough in itself. This, however, ought to have been perceived before the issuance of the advertisement and it should have been included within the advertisement. Merely to say that to insert in the advertisement a clause that the rules can be changed and further criteria could be introduced after the advertisement has been undertaken amounts to issuing a blank cheque to the respondent organization which is against the rules of natural justice. The respondents must mention in between the advertisement that what they are inferred and what is the process that they are going to undertake. Therefore, this issue is decided against the respondents.
16. In conclusion, we hold that we cannot lose sight off the fact that the applicant has scored the highest marks in written examination and despite the fact that disproportionate marks have been awarded for the interview, a strict view would have been figured in the final selection, had it not been final cut off marks introduced later. We also take full cognizance of the fact that the rules of the commissions had been changed in mid way after the game had begun and was well advanced. However, we are not going to crush the entire result, but we direct that the applicant be included in the pooled merit at his rightful place on the basis of his marks.
17. With the above observations, the Original Application stands allowed without costs.
(Dr. Birendra Kumar Sinha) (V. Ajay Kumar) Member (A) Member (J) /pj/