Central Administrative Tribunal - Jabalpur
Deeksha Mishra vs Union Of India on 24 July, 2015
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.200/00227/2015
Jabalpur, this Friday, the 24th day of July, 2015
Mr. G.P.Singhal, Administrative Member
Mr. U Sarathchandran, Judicial Member
Deeksha Mishra, D/o Shri A.K. Mishra, Age: 24 years
Occupation: Asstt. Teacher, Swamy Vivekanand Cantt. School
R/o H.No. 1753/1 New Shobhapur, VFJ Road,
Jabalpur PIN 482009 - Applicant
(By Advocate Shri N.S.Ruprah)
V e r s u s
1. Union of India, Through Secretary, Ministry of Defence,
South Block, New Delhi-110001
2. Ordnance Factory Board, 10-A Khudiram Bose Marg,
Kolkata PIN 700001 Through Chairman
3. General Manager, Ordnance Factory, Khamaria, Jabalpur 482005
4. Staff Selection Commission (M.P. Region)J-5, Anupam Nagar,
Raipur (Chhattisgarh) PIN 492007 Through Secretary
5. Ms. Ranjna Thakur, Aged about 32 years Through General Manager
O.F.K. (Khamariya) Jabalpur 482005 -Respondents
(By Advocate Shri S.K.Mishra for official respondents & Smt.Gulab Patel proxy counsel of Shri Sanjay Dwivedi for respondent no.5)
(Date of reserving the order :-21.07.2015)
ORDER
By G.P. Singhal, AM.-
By filing this Original Application the applicant has prayed for quashing of the result of the post of Teacher (Primary) conducted by the Staff Selection Commission (for brevity SSC) (Annexure A-1). She has also prayed for direction to the respondents to select and appoint her on the post of Teacher (Primary).
2. Consequent to advertisement No.04/2012; Cat No.MPR-4 dated 29.12.2012 issued by the SSC(M.P.Region), Raipur for filling up one unreserved vacancy and one OBC vacancy of the post of Teacher (Primary) in Ordnance Factory, Jabalpur, an examination was conducted by the SSC on 25.5.2014. A total of 1063 candidates appeared in the screen test including the applicant & respondent No.5, out of which 217 were found to possess the prescribed minimum qualification for the post (Annexure-A-5). The applicant had obtained 75.25 marks while the respondent No.5 got only 72.75 in the screening test. Out of these, 34 were short-listed for being called for the interview, which was held on 13.10.2014. The final select list was declared on 1.2.2015 (Annexure-A-1) which reflects that the applicant as well as respondent No.5 both had got 78 marks in the interview. This means that the total of marks obtained by the applicant and respondent No.5 in the written and interview were 153.25 and 150.25 respectively. However, the respondent No.5 was selected by ignoring the claim of the applicant. Hence, this Original Application.
3. The official-respondents as well as private respondent, in their replies have submitted that the applicant and respondent No.5 both have secured 78 marks in the interview, but considering the age of respondent No.5, who is older than the applicant, she was placed on top in the select list and got selected on the post of Teacher (Primary) under unreserved category. They have further stated that the written test was only a qualifying examination and whosoever qualified in the same became eligible to participate in the interview. The criteria for selection is marks obtained in the interview and therefore if the applicant has secured higher marks in the written test that cannot be made basis for her selection.
4. The learned counsel for the applicant has placed reliance on the decision of Honble Supreme Court in the matters of Praveen Singh v. State of Punjab, (2000) 8 SCC 633 wherein it has been held thus:
12. Reading the two requirements as above, in our view question of having the written test written off in the matter of selection does not and cannot arise. Had it been the intent of the Service Commission, then and in that event question of there being a totality of marks would not have been included therein and together with the specified marks for viva voce tests, would not have been there. Neither would there have been any requirement of qualifying pass marks nor would there have been any aggregate marks as noticed above.
13. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok v. State of Karnataka4. Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. 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 40 posts, interview cannot be said to be a satisfactory method of selection though however it may be a part thereof in the factual score we have the advantage of having the rules prescribing the mode and method of appointments and specific marks are earmarked for written examinations of various subjects together with totality of marks for viva voce test. As a matter of fact, out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself why these 400 marks allotted for a written examination in four different subjects, if the interview was to be the guiding factor; there has been however, no answer to the same excepting that the Court ought not to interfere in the matter of selection process in the absence of mala fides true it is that in the event the selection is tainted with mala fides, it would be a plain exercise of judicial power to set right the wrong but is it also realistic (sic unrealistic) to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally superfluous and of no effect at all. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and as has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness.
14. The action of the respondent Commission thus is wholly unreasonable, unfair and not in accordance with the declared principles. Appointment procedure is evident from the documentary evidence disclosed in the proceedings and the Commission ought to have taken note of the written examination results as well. As a matter of fact the High Court while recording its acceptance to the method of selection on the basis of the viva voce test only, was pleased to observed as below:
However, we consider it absolutely imperative to observe that the Government should get the rules examined and make proper amendment so that its intention of making distinction between qualifying test and viva voce test does not remain obscure. We also direct the PPSC to take extra precautions while issuing any future advertisement so that no inconsistency remains between the rules and the contents of the advertisement.
15. The High Court admittedly therefore found inconsistency and obscurity in the entire process and as a matter of fact, the High Court has suggested incorporation of proper amendments in the rules so as to avoid confusion and obscurity. We are however, constrained to note that having come to a finding about the inconsistency and obscurity in the process, the High Court thought it fit to decry the claim of the writ petitioner being the appellant herein on the plea of the employers right but the documents through which the right flows indicates a contra situation and as such the action suffers from the vice of arbitrariness and unreasonableness warranting intervention of this Court. In the wake of the above, the order of the High Court stands set aside and quashed. Consequently the appointments are also set aside. The Public Service Commission is directed to complete the process of selections in terms of the existing rules so that both the written and the viva voce test be taken into consideration for the purpose of effecting appointments. It is made clear that no further advertisement or examination shall take place but reconsideration of the entire process be effected upon due reliance on the written as well as viva voce test. The process be completed within a period of 3 months from the date thereof. It is further made clear that the appointments if any, already made shall continue, but shall be subject to the further results which may be declared by the Public Service Commission in regard to filling up of the posts of Block Development and Panchayat Officers. The appeal thus stands allowed. There will however be no order as to costs.
5. The learned counsel for the applicant has also placed reliance on the decision of Honble Supreme Court in the matters of Tridip Kumar Dingal Vs. State of W.B., (2009) 1 SCC 768, wherein their lordships have held thus:
38. Having heard learned counsel for the parties, in our opinion, the appeals deserve to be partly allowed. The contention on behalf of the State Government that written examination was for shortlisting the candidates and was in the nature of elimination test has no doubt substance in it in view of the fact that the records disclose that there were about 80 posts of Medical Technologists and a huge number of candidates, approximately 4000 applied for appointment. The State authorities had, therefore, no other option but to screen candidates by holding written examination. It was observed that no recruitment rules were framed in exercise of the power under the proviso to Article 309 of the Constitution and hence no such action could be taken. In our opinion, however, even in absence of statutory provision, such an action can always be taken on the basis of administrative instructionsfor the purpose of elimination and shortlisting of huge number of candidates provided the action is otherwise bona fide and reasonable.
39. It has also come on record that the administrative decision had been taken by the State to take elimination test to shortlist huge number of candidates. It is further clear that the plea to that effect was raised by the State in the first round of litigation before the first authority viz. the Tribunal itself. But, in view of the fact that in that round of litigation, the Tribunal held the action of the State authorities to be wrong and the High Court upheld it and the State did not challenge the order in this Court, in our opinion, the High Court in the second round, did not commit any error of law in directing the authorities to prepare merit list on the basis of marks obtained by the candidates in written examination as also in oral interview. It was not open to the State authorities to reiterate and reagitate in the second round, the same ground, that written examination was in the nature of elimination test and it was limited to shortlisting of candidates and marks obtained by candidates at the written examination could not be considered for preparation of merit list. The said stage had already gone and the decision in the first round had attained finality so far as the nature of written examination was concerned. The Tribunal and the High Court were, therefore, right in holding in the second round that the merit list was required to be prepared on the basis of composite marks obtained by candidates at the written examination and oral interview both and not only on the basis of marks at the oral interview.
6. Heard the learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
7. In the instant case we find that in para 5 of the notification issued by the SSC it has been stated that the Commission may, at its discretion also decide to hold a screening test for all/short-listed candidates. Only such of the candidates who qualify in the screening test at the standard fixed by the Commission at their discretion would be made eligible for being called for interview. The contention of the respondents is that selection was based only on the marks of interview and screening test was just for the purpose of short-listing the candidates as number of candidates were high. The judgment of the Honble Supreme Court in the matters of Praveen Singh(supra) relied upon by the applicant is not applicable in this case as in that case selections were being done by the Public Service Commission and written tests were conducted on the basis of pre-determined and notified syllabus. Since the marks of written test were 400 as against only 50 marks for the interview the Honble Supreme Court directed for completing the process of selection in terms of the existing rules so that both the written and viva voce tests are taken into consideration for the purpose of effecting appointments. In the case of Tridep Kumar Dingal (supra) since the Honble High Court had already given directions for counting of marks of written test as well as interview for selection, which direction was not challenged by the State in the first round of litigation before Honble Supreme Court, the Honble Supreme Court held that it was not open to the State authorities to reiterate and reagitate in the second round the same grounds, and the said stage has already gone and the decision in the first round has attained finality so far as nature of written examination was concerned. In these circumstances the Honble Supreme Court upheld the directions given by the Honble High Court directing the authorities to prepare the merit list on the basis of marks obtained by the candidates in the written examination as also in the oral interview.
8. The learned counsel for the respondents argued that these selections have been done by SSC and they have been following this procedure for many of the selections conducted by them. Thus, it will not be justified to make an exception in this case, by asking them to count marks of written test as well as interview for the purpose of preparing merit list.
9. In view of the aforesaid, we are of the considered view that the respondents have not committed any mistake in making selection in this case only on the basis of marks obtained in the interview and giving appointment to respondent No.5 on the basis of being older in age as compared to the applicant, despite both of them getting equal marks in the interview.
10. In the result, the Original Application is dismissed, however, without any order as to costs.
(U.Sarathchandran) (G.P. Singhal) Judicial Member Administrative Member rkv 1 Sub: selection OA 200/00227/2015 Page 1 of 6