Jammu & Kashmir High Court
Chief General Manager Human vs Anil Sharma& Others on 15 December, 2020
Author: Sanjay Dhar
Bench: Rajesh Bindal, Sanjay Dhar
207
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(THROUGH VIRTUAL MODE)
LPA No.77/2020
Reserved on: 23.10.2020.
Pronounced on: 15. 12.2020.
Chief General Manager Human ...Appellant(s)
Resources Management Department & anr.
Through: Mr K.S.Johal Sr. Advocate with
Mrs. Aruna Thakur, Advocate.
Vs.
Anil Sharma& others ...Respondent(s)
Through:Mr. Ajay Gandotra, Advocate.
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL,
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
SANJAY DHAR,J.
1. The appellants have challenged the judgment dated 19.03.2020 passed by learned Single Judge in SWP No.1746/2018 whereby writ petition of the respondents has been allowed and the appellants have been directed to select and appoint the respondents as Office Attendants in the Jammu office of Reserve Bank of India by giving them the benefit of horizontal reservation meant for ex-servicemen i.e. EX-1 and EX-2 against the available vacancies in the General Category, if any, out of the impugned select list.
2 LPA No.77/2020
2. The facts leading to the filing of the instant appeal are that on 17.11.2017, the Reserve Bank of India (hereinafter referred to as RBI) issued an Advertisement Notice inviting applications from eligible candidates for 526 posts of Office Attendants in various offices of the RBI. The selection was to be made through a competitive test (Online Test) followed by Language Proficiency Test (LPT) in regional language. The breakup of the posts for the Jammu office of the RBI is as under:
General :10
OBC :09
Total :19
3. Out of the aforesaid posts, one post was earmarked for horizontal reservation in favour of Disabled Ex-servicemen/dependents of Ex- servicemen killed in action (EX-1) and four posts were earmarked for Ex- servicemen (normal) (EX-2).
4. The selection was to be done on the basis of Online Test and Language Proficiency Test (LPT). The relevant excerpts of the Advertisement Notice are reproduced as under:
Online Test:
S. Name of Tests No. of Questions Maximum No. (Objectives) Marks Composite Time 1. Reasoning 30 30 2. General English 30 30 3. General Awareness 30 30 90 minutes 4. Numerical ability 30 30 Total 120 120 i. Online test except the test of General English will be in bilingual i.e. English and Hindi. ii. There will be negative marking for wrong answer in the Online
Test. 1/4th mark will be deducted for each wrong answer. iii. Candidates will have to pass with minimum prescribed mark in each subject of online Test.3 LPA No.77/2020
iv. LPT will be of Qualifying Type. The candidates provisionally selected from the On-line test will, have to undergo a language proficiency test (LPT). LPT will be conducted in the official/Local Language of the State concerned (Annex-I). Candidate not proficient in the Official/Local Language would be disqualified. v. Other detailed information regarding the test will be given in an information Handout, which can be downloaded by the candidates from RBI's website along with call letter. vi. Roll No. of those candidates who have qualified for LPT on the basis of Online test will be displayed on RBI's website in the month of January/February 2018. Due to LPT will also be displayed on the website along with a brief notice thereof.
vii. LPT is mandatory. No examination of any sort will be given to any candidate from appearing in LPT, which will be conducted at respective offices. Final Selection will depend, on the performance in online test, qualifying in LPT, Medical fitness, verification of certificates and Biometric Data, etc. to the Bank's satisfaction. Decision of the Bank in this regard, will be final.
5. It was provided that the candidates will have to pass with minimum prescribed marks in each subject of Online Test and that LPT will be of qualifying type. It was further provided that the candidates provisionally selected from the Online Test will have to undergo a language proficiency test (LPT) which was to be conducted in the official/local language of the State concerned.
6. Respondent No.1 herein (Petitioner No.1 before the Writ Court) applied in the category of EX-1 i.e. Disabled Ex-servicemen whereas respondents No.2 and 3 herein (petitioners No.2 and 3 before the Writ Court) applied in the category of Ex-2 i.e. Ex-servicemen (normal). They appeared in the Online Test on 05.01.2018. Provisional list of shortlisted candidates of Jammu Region was uploaded on the website of the RBI on 08.02.2018 in which only 50 candidates including the petitioners were enlisted. Petitioners No.2 and 3 before the Writ Court along with one Raman Sharma figured in the provisional shortlist in the category of EX-2 4 LPA No.77/2020 whereas petitioner No.1 before the Writ Court qualified Online test and was the only candidate shortlisted against the post reserved for category EX-1. The shortlisted candidates were called for Language Proficiency Test on 19.03.2018 and the petitioners cleared the said test as well. The viva voce of the candidates was conducted on 04.04.2018. The petitioners were declared to have qualified the Biometric Test and their documents were found to be genuine and correct. The final selection list was uploaded by the RBI on its website on 24.08.2018. However, the petitioners did not find their names in the final select list compelling them to file the writ petition.
7. The appellants herein (respondents before the Writ Court) did not dispute the factual aspects mentioned above but they took a stand before the Writ Court that the petitioners and the others claiming the benefit of horizontal reservation were granted 8 grace marks as per the Government of India instructions but none of them could make it to the select list/reserve list of the open merit candidates. According to them, the last candidate selected in the open/combined category has obtained 91.50 marks whereas petitioners secured 61.5, 78.25 and 76.00 marks even after awarding grace marks. According to the appellants herein (respondents before the Writ Court), the petitioners before the Writ Court could not secure marks equal to or more than the cutoff in the open merit and, therefore, they were not placed in the final select list.
8. The learned Single Judge, while allowing the writ petition, observed that in the instant case, there were no minimum standards prescribed for qualifying online test for selection, therefore, addition of 8 grace marks to the merit of the petitioners was totally inconsequential. The learned Single 5 LPA No.77/2020 Judge further observed that it was totally absurd and illogical to compare that merit of the candidates belonging to ex-servicemen category with the merit of last selected candidate of open merit category. The learned Single Judge also observed that the writ petitioners would make it to the select list of general category and would displace last three candidates in the select list of general category. After observing as above, the learned Single Judge stopped short of quashing the selection of last three candidates of select list in general category as they were not parties before the Writ Court and directed the respondents (appellants herein) to select and appoint the petitioners against the available vacancies in general category out of the impugned select list. It was also observed by the learned Single Judge that while issuing notice in the writ petition, the selection of last three candidates in the general category had been kept subject to outcome of the writ petition.
9. The appellants have challenged the judgment of the learned Single Judge before us mainly on the ground that they have followed the law pertaining to providing of horizontal reservation to the ex-servicemen in letter and spirit by awarding grace marks to the candidates of said category but despite awarding the grace marks, the petitioners could not make the cutoff merit in the general category to which they belong. According to the appellants, Rule 6A of the Ex-Servicemen (Re-Employment in Central Civil Services and Posts) Rules, 1979, provides that the candidates belonging to said category can be selected under a relaxed standard of selection to make up the deficiency in the reserve quota subject to the condition that such relaxation will not affect the level of performance by such candidates. It is urged that the requirement of said Rule got fulfilled 6 LPA No.77/2020 once the appellants awarded 8 grace marks to the petitioners but despite awarding this relaxation, the petitioners could not make the grade, inasmuch as they secured less than the cutoff marks of the final merit list.
10. On the other hand, respondents herein (writ petitioners before the Writ Court) contended that mere awarding of grace marks does not meet the requirement of constitutional obligation of providing horizontal reservation to ex-servicemen. It is contended that for fulfilling the constitutional mandate, the appellant RBI was duty bound to include the petitioners in the select list even if they had not secured the cutoff marks in the general category, to which they belonged, particularly when they had qualified the mandatory Online test and Language Proficiency Test.
11. It is to be noted in the instant case that the appellants have placed on record documents before us vide CM No.4462/2020. The said documents were not before the Writ Court. As per these documents, the qualifying marks of various categories in the instant selection so far as Online test is concerned were prescribed. The particulars thereof are given as under:
Sr. Category Qualifying/passing marks Aggregate No. in each test out of 40 (i.e. qualifying/passing maximum marks) marks out of 200 (i.e. maximum marks 1 General 14 (i.e.35% of 40 marks) 70 2 SC/ST/PWD 11 (i.e. with the grace 55 marks of 7% rounded off to 3 marks) 3 OBC 12 (i.e. with the grace 60 marks of 5%) 4 Ex No separate qualifying/passing marks for Ex-
serviceman serviceman category were prescribed. The qualifying/passing marks in respect of Ex-
serviceman may be the qualifying /passing marks in respect of the category 7 LPA No.77/2020 (General/SC/ST/ OBC/PWD)
12. The learned Writ Court in the impugned judgment has observed that no minimum standards were prescribed for qualifying Online test for selection, obviously because the aforesaid record was not before the learned Writ Court. It also appears from the record placed before the Court vide CM No.4462/2020 that the Legal Departmentof the RBI had made the following proposal for the purposes of the instant selection process:
"Allowing grace marks in written test and interview. As mentioned by Legal Department in their note under reference we may consider providing a definite relaxation to PWD/Ex-serviceman in selection standard while conducting recruitment of Class III and IV under various categories. Accordingly, we may consider providing 7% grace marks in total marks scored by PWD and Ex- serviceman candidates in written test and interview as has been done by RBSB in case of PWD candidates, while preparing select list for various recruitment exercises conducted by them. After adding the grace marks, if the total score of PWD/Ex-serviceman is more than the cut off marks of the last candidate of the category to which they belong to then they will secure place in the Select List of their category by knocking off the last candidate. This will facilitate effective implementation of Horizontal Reservation."
13. The note, vide which the aforesaid proposal was made, records that if PWD/Ex-serviceman who belong to General Category are included in the select list of general category by replacing the last general category candidate in the select list then it may amount to providing of reservation of more than 50 %, which is not allowed by the Constitution. The afore- quoted proposal of the Legal Department was approved by the Competent Authority of the RBI. It is in this backdrop that the RBI has adopted the methodology of awarding grace marks to PWD/Ex-servicemen candidates without actually reserving the posts for such categories in the general or 8 LPA No.77/2020 other categories. This gives rise to a question whether by adopting such a course, the Constitutional requirement of providing horizontal reservation to PWD and Ex-servicemen candidates is fulfilled?
14. The other aspect of the matter which arises for determination is whether the last three candidates in the General Category select list, whose selection, by virtue of interim order passed by the Writ Court, was made subject to the outcome of writ petition, were required to be heard before passing a final order in the writ petition.
15 Admittedly, the documents placed on record by the appellant before us vide CM No. 4462/2020 were not before the Writ Court and obviously the Writ Court could not go into the question whether the methodology of awarding grace marks to PWD/Ex-servicemen candidates without actually reserving the posts for such categories in the general or other categories, was in accordance with the mandate of the Constitution. Not only this, even the candidates in General Category Select List whose selection was made subject to the outcome of the writ petition, were not parties before the Writ Court. Since the answer to the question regarding validity of the methodology adopted by the appellants in the instant case, is going to affect the last three selected candidates of the general category, therefore, it is necessary to hear these candidates before deciding the matter finally. 16 In the aforesaid circumstances, we remand the case back to the learned Writ Court with a direction to the appellant to place on record all the documents that have been placed before us vide CM No.4462/2020 before the Writ Court. It is further directed that the last three candidates in the General Category Select List be made party respondents to the writ 9 LPA No.77/2020 petition. The complete particulars of these candidates shall be provided to the Writ Court by the appellant herein. The learned Writ Court is requested to decide the matter afresh after hearing the parties including the last three candidates in the General Category Select List and after considering fresh material that may be placed on record by the appellant herein before it. 17 With the aforesaid observations, the appeal along with connected applications stands disposed of.
The parties shall appear before the Writ Court on 28.12.2020.
(Sanjay Dhar) (Rajesh Bindal)
Judge Judge
Jammu
15.12.2020
Sanjeev
Whether order is speaking: Yes
Whether order is reportable:Yes/No
SANJEEV KUMAR UPPAL
2020.12.15 13:12
I attest to the accuracy and
integrity of this document