Central Administrative Tribunal - Delhi
Ms. Anju vs Indian Council Of Agricultural ... on 10 July, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2703/2014
Reserved on : 02.07.2015.
Pronounced on : 10.07.2015.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Ms. Anju,
Aged 41 years,
Personal Assistant,
W/o Sh. Deepak Kumar,
R/o A-44, Krishi Vihar,
New Delhi-110048. .. Applicant
(through Sh. Ajesh Luthra, Advocate)
Versus
1. Indian Council of Agricultural Research
through Secretary,
Krishi Bhawan,
New Delhi.
2. The Chairman,
Agricultural Scientists Recruitment Board,
Krishi Anusandhan Bhawan,
PUSA, New Delhi-12. .. Respondents
(through Sh. Praveen Swarup, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was appointed as a Stenographer Gr.III in ICAR on 21.09.1992 and got promoted as Personal Assistant on 01.01.2009. On 03.05.2013, when process for promotions to the post of Private Secretary by LDCE for 33 1/3% quota was initiated by the respondents, the applicant applied for the same. She appeared for the written examination, which was held on 13-14.08.2013. However, she was not finally selected. She has submitted that even though more vacancies were available only one appointment was made by the respondents leaving the other posts unfilled. She has, therefore, approached this Tribunal seeking the following relief:-
(a) Call for the records of the case including answersheet of the written examination of the applicant.
(b) Declare that the respondents have illegally denied appointment/promotion to the applicant to the post of Private Secretary in the Limited Departmental Competitive Exam-2013 and
(c) Consequently direct the respondents to further consider and appoint/promote the applicant to the post of Private Secretary w.e.f. the date of her counterparts appointment and will all consequential benefits.
(d) Award costs of the proceedings and
(e) Pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. Her contention is that the respondents had not announced any qualifying marks for the written examination. Therefore, the entire conduct of the examination by them was absolutely illegal, arbitrary and unfair. Further, she has stated that if the candidates were expected to achieve a minimum standard then the same should have been announced before hand to enable them to achieve the same. In this case, it is evident that the qualifying marks for the written examination were determined not only after the examination was held but also after the evaluation of the answersheets was done. Such action of the respondents smacks of mala fide as the respondents can very conveniently oust any candidate. Even in evaluation of question papers, the respondents had been callous and had forgotten to evaluate answer to one question at the relevant time. This evaluation was done only after a long drawn process of inspection and representation. Further, the respondents also did not announce any minimum marks for the shorthand and typing test. The applicant has been wrongly declared disqualified merely on the ground that there were more than 5% mistakes committed by her during the shorthand examination. Since no such criteria had been announced before hand, this action of the respondents was also illegal. The applicant has stated that UPSC norms in this regard prescribe 60% marks as pass marks whereas the respondents have disqualified the applicant for committing more than 5% mistakes. Thus, the action of the respondents lacks in transparency and fairness. The respondents have also left at least one vacancy unfilled, which they intend to carry forward to the next recruitment.
3. The applicant has placed reliance on the judgment of Honble Supreme Court in the case of K. Manjusree Vs. State of Andhra Pradesh and Another, (2008) 3 SCC 512 in which it was held that the selection criteria has to be prescribed in advance and rules of the same cannot be changed afterwards. On the same issue, she has relied on the judgment of Honble Supreme Court in the case of Himani Malhotra Vs. High Court of Delhi, 2008(7)SCC 11 wherein it has also been held that the rules of the selection process cannot be changed mid way through the examination. Further, the applicant has placed reliance on the judgment of Hyderabad Bench of the Tribunal in OA-34/2011 (Mrs. . Sudha Valli Tayaru Vs. ICAR & Ors.) decided on 21.03.2013 in which it has been held that DPC had no authority to fix the minimum qualifying marks.
4. During the course of the arguments, on a prayer made by learned counsel for the applicant, the original records of the examination were also summoned and perused by us. Learned counsel for the applicant contended that there was cutting in the marks awarded to the applicant in question No. 3 in which she had first been given 30 marks which were cut and made 15 marks. He argued that cutting made in the answersheet gave rise to suspicion about the fairness of the examination process.
5. In their reply, the respondents have submitted that ICAR has its own specific Recruitment Rules for the post under question and its own duly notified Scheme and Rules for the LDCE. As per this, the discretion to fix the qualifying benchmark in the written examination vested with the Board (ASRB). Accordingly, the benchmark of 45% for general category candidates and 40% for SC/ST category had been fixed with the approval of Chairman, ASRB on 26.09.2013. They have disputed the contention of the applicant that higher benchmark was fixed in the examination in question. They have stated that previously there was no LDCE quota for the post of PSs and hence no such examination had been conducted.
5.1 As regards the shorthand test they have stated that qualifying shorthand test in Hindi or English at the speed of 100 w.p.m. was part and parcel of the Scheme and Rules of the LDCE. A note in the Scheme under Part-I stipulated that evaluation of the record of service was to be done of only those candidates who qualified in both written as well as in the shorthand test. Thus, shorthand test was an essential qualification condition but its marks were not to be counted for final selection. The Board had decided not to fix any minimum marks in shorthand test. However, because of this the applicant has not been subjected to any discriminatory or arbitrary procedure.
5.2 The respondents have further submitted that the shorthand examination was conducted by an outsider examiner who applied uniform criteria for all candidates. The dictation had 1000 gross words and was of 10 minutes duration. The examiner used the standard formula of Directorate General of Employment and Training, Ministry of Labour according to which any candidate with over and above 5% admissible errors was to be declared unqualified as he would not attain the qualifying speed of 100 w.p.m. in any case. The formula used was as follows:-
NET WPM speed=Gross words(1000)-Error penalty Time (10) The error penalty was calculated by multiplying the actual errors committed by a candidate over and above the 50 errors by 2. The formula was such that the wpm speed of any candidate who committed even one error more than the admissible errors would be having speed less than 100 w.p.m. As far as the applicant was concerned, she committed more than 50 errors and was, therefore, disqualified in the shorthand test. Only one candidate had qualified this test by having errors 50. Learned counsel for the respondents also stated during arguments that this formula was explained to all the candidates before start of the shorthand test.
6. We have heard both sides and have perused the material on record. The first ground taken by the applicant was that there was cutting in the answersheet in the marks awarded to the candidates. He argued that this raised doubts about the fairness of the examination process. We have perused some of the answersheets of the candidates who had taken the written examination. We found that there were cuttings at different places in several answersheets including that of the applicant. However, simply on the basis of these cuttings, it was not possible to come to any conclusion whether these were bona fide corrections made by the examiner or were as a result of any mala fide on his part. Learned counsel for the respondents rightly argued that had the intention of the respondents been to favour to any candidate, they would not have left one post of Private Secretary vacant after this selection process. We find substance in this argument and are not inclined to come to a conclusion on the basis of these cuttings that the examination process has not been fair.
6.1 The next point taken by the applicant was that the respondents had not declared in advance the qualifying nature of the written examination as well as the shorthand test and the qualifying marks required in them.
6.2 In this connection we have seen the notice for the LDCE issued by the respondents on 03.05.2013, which is available at pages 20 to 21 of the paper-book. Along with the notice the Rules of ICAR under which Scheme of LDCE has been framed is also enclosed at page-22 of the paper-book. The relevant para-2 of the said Scheme is reproduced below for the sake of convenience:-
2. The number of vacancies to be filled on basis of The results of the examination will be specified in the Notice issued by the ASRB/ICAR Institutes. Reservations will be made for candidates belonging to Scheduled Castes/Schedules Tribes in respect of the vacancies as may be fixed by ICAR in accordance with the Government of India instructions on the subject.
The examination shall e conducted according to the following plan:
PART-I
(a) Written examination carrying maximum of 500 marks in the subject as show in para 2 below:
(b) A qualifying Shorthand test in Hindi or English at 100 w.p.m. for Private Secretary only.
Note:
All the candidates competing for the post of Private Secretary will be required to take qualifying shorthand test at the time of the written examination. However, evaluation of record of service will be done of only those candidates who qualify both the written examination as well as in the Shorthand Test.
Candidates will be required to transcribe their shorthand notes on computers which will be provided by the ASRB at the time of examination Centre.
PART-II Evaluation of record of service carrying a maximum of 100 marks of candidates:
(a) Who obtain such minimum qualifying marks in the written examination as may be fixed by the ASRB/ICAR Institutes at their discretion (for S.O. and P.S.)
(b) Who obtain such minimum qualifying marks in the shorthand test as may be fixed by the ASRB/ICAR Institutes at their discretion (for P.S.). 6.3 It is seen from the above that in Part-I, Clause-b, the respondents have laid down that the shorthand test in English or Hindi at 100 w.p.m. would be qualifying in nature for the post of PSs. Again in Part-II, Clause-a, it has been laid down that service record of only those candidates would be seen who attained qualifying marks in the written examination. Further in Part-II, Clause-b it is laid down that service record of only those candidates would be seen who obtained minimum qualifying marks in the shorthand test. From the above, it is obvious that the respondents had clearly notified that both written test as well as shorthand test would be qualifying in nature. However, instead of prescribing the qualifying marks what has been mentioned in the Scheme is that these will be fixed at the discretion of the ASRB/ICAR.
6.4 Thus, it is incorrect to say that the qualifying nature of the written test and shorthand was not known to the applicant when she appeared in the examination. Moreover, it was also known to her that the respondents had reserved the right to fix the qualifying marks in each of these tests. If the applicant was aggrieved by these conditions, she should have protested before taking the examination. It is not open to her to challenge the Scheme of the examination after participating in the same and failing. In this regard we place reliance on the judgment of Honble Supreme Court in the case of Om Prakash Shukla Vs. Akhilesh Kumar, (1986 ) Supp. SCC 285 in which a three-Judge Bench ruled that when the petitioner appeared in the examination without protest, he was not entitled to challenge the result of the examination. The same view was reiterated in the case of Madan Lal Vs. State of J&K, (1995) 3 SCC 486 in the following words:-
The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. We also place reliance on the judgment of Honble Supreme Court in the case of Ramesh Chandra Shah and Ors. Vs. Anit Joshi and Ors., (Civil Appeal Nos.2802-2804 of 2013) decided on 03.04.2013 in which it has been held that if a person once participates in the selection process, he cannot challenge the same later.
6.5 Learned counsel for the applicant placed reliance on the judgments of Honble Supreme Court in the case of K. Manjusree (supra) and Himani Malhotra (supra). In these cases Honble Supreme Court has laid down that the conditions of examination cannot be changed mid way through the selection process. However, in the instant case there is no change in the conditions as it had been notified before hand that both written test as well as shorthand test would be qualifying in nature. It had also been notified that ASRB/ICAR reserved the right to fix the qualifying marks. Thus, the aforesaid judgments would not apply in the instant case since there was no change in the Scheme of the examination. The judgment of the Tribunal relied upon by the applicant also does not seem to be relevant in this case.
6.6 As far as the shorthand test is concerned, the respondents have stated that they have followed the standard formula on attainment of 100 w.p.m. as prescribed by Directorate General of Employment and Training, Ministry of Labour. According to this formula, if a candidate commits more than 50 errors in typing 1000 gross words, he cannot attain the required 100 w.p.m. speed. We have perused the answersheet of the respondents and we have found that she committed more than 50 errors and was, therefore, disqualified. We do not find any mala fide or lack of transparency in this. The formula used by the respondents was a standard one which is widely used by all Ministries. Learned counsel for the applicant has referred to UPSC using 60% marks as qualifying for the shorthand examination. Be that as it may, the respondents chose Directorate General of Employment and Training, Ministry of Labour formula for their selection process and they cannot be faulted for the same. Moreover, since the applicant did not qualify the shorthand test, she could not have been selected irrespective of the marks, she had scored in the written examination. Therefore, cuttings in the answersheet has not made any difference in her case.
7. In view of the above, we do not find any merit in this O.A. and the same is dismissed. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/