Central Administrative Tribunal - Ahmedabad
K. Aravindakshan vs Union Of India (Uoi) And Ors. on 8 March, 2000
JUDGMENT A.S. Sanghavi, Member (J)
1. The applicant who is working as P.A. "B" in the scale of Rs. 1600-2900 with the respondent no. 2. has moved this O.A. challenging the action of the respondents in not promoting him to P.A. "C". The applicant had joined the services in SAC as Stenographer in the grade of 425-700 from 5.5.73. He was thereafter promoted as P.A. in the year 1978 in the grade of Rs. 475-750 and further promoted to the P.A. "A" in the year 1982 in the grade of Rs. 550-750. In the year 1983, he was promoted to P.A. "B" on the basis of his seniority in the grade of Rs. 550-900. The promotion to the post of P.A. "C" is made by promotion from the cadre of P.A. "B". Selection to the post of P.A. "C" is made on the basis of the interview and ACR as per the O.M. dated 30.7.87. The interview carries the weightage of 70 marks while the ACR carries the weightage of 30 marks and to qualify for promotion, candidate had to secure at least 60% marks in the aggregate with a minimum of 50% marks in each of the two elements evaluation. The applicant had appeared in the interview for the post of P. A. "C" in the year 1987 but he was not promoted to the said post. Thereafter again in the year 1991 when certain posts of P.A. "C" had fallen vacant, the applicant had appeared in the selection but he was not selected. According to the applicant, he was not selected by the DPC with malafide intention as he had made some allegations against three members of the DPC. An inquiry was started against him in the year 1987 for wrongfully obtaining the house building advance and subsequently, he was exonerated in that inquiry on dated 8.3.91. When the DPC met, he was not yet exonerated and this factum of pending inquiry had influenced the DPC members not to select him. He has also alleged that the person who had written his ACR was also involved in the case of house building advance and he had made allegations against him also. The applicant has also challenged the norms for selection contending that the weightage of 70% marks for interview and 30% marks for ACR fixed was arbitrary and illegal. He has further alleged that he was deliberately asked irrelevant questions in the interview and the members of the DPC were prejudiced against him as he had made allegations against them in connection with house building advance. He was therefore, deliberately not selected in 1987 as well as in 1991. He has alleged that the assessment made of the candidates by the DPC members is clearly capricious, arbitrary and violating the Articles 14 and 16 of the Constitution and therefore, the entire procedure for selection is required to be quashed. He has prayed for quashing of the selection of respondents no. 6 to 11 for the post of P. A. "C" in the year 1991 and also for a direction to the respondents SAC to issue fresh memorandum giving weightage taking into consideration the judgments of the High Courts and the Supreme Court and reconstitute the DPC for considering the case of the applicant a fresh.
2. The respondents have resisted this O.A. by contending inter alia in their reply that the said O.A. is not maintainable in view of the fact that the applicant has challenged the selection process only after appearing in the same twice and failing to get through it. The respondents have submitted that the post of Stenographer grade "B" has been up graded to P.A. "C" (2000-3200) vide the ISRO, H.Q. O.M. dated 30.7.87 and all those who were holding the post of P. A. "B" (1600-2900) were to hold the post and scale as personal to them till they were promoted to P.A. "C" or not vacated the post for any reasons. The procedure laid down by the O.M. dated 30.7,87 envisaged assessment by the DPC of all the employees of P. A. "B" grade and the element of assessment was 70% marks for personal interview and 30% marks for ACR and to qualify for promotion, candidate was required to secure at least 60% marks in the aggregate with a minimum of 50% marks in each of the two elements for evaluation. The D.P.C. of 1987 comprised of 5 members including one Mr. C.R. Shah but Mr. C.R. Shah was absent when the applicant was interviewed on dated 28.9.87. Out of the three eligible candidates only one was recommended i.e. the respondent no. 3 Mr. T.R. Ramchandran, for promotion to the post of P.A. "C" in the grade of 2000-3200. The respondents have denied that the applicant though entitled for promotion was not selected due to the members of the DPC being prejudiced against him. According to the respondents, the applicant was charge sheeted on dated 16.9.87 but on the date on which his interview was taken, no inquiry was pending and the question of members of the DPC being prejudiced on this account did not arise. According to the respondents the applicant was considered for promotion in 1987 but since he was not found fit, he was not recommended and there was no question of any mala fide or prejudiced involved therein. It is further contended by the respondents that since on dated 19.2.91 when the applicant was further interviewed for promotion, the disciplinary proceedings were pending against him, the recommendations of the DPC were kept in sealed cover as per the procedure on this subject. The applicant was thereafter exonerated of all the charges vide the order dated 8.3.91 and the sealed cover was opened thereafter. The applicant was communicated with the result vide the letter dated 15.3.91. The respondents have denied the allegations that members of the DPC were highly prejudiced against him as he had made some allegations of wrongfully obtaining the house building advance against them. The respondents have further denied that the procedure adopted for selection was arbitrary and discriminatory. They have also denied that the applicant was deliberately asked irrelevant questions in the interview and that he was deliberately not selected by the DPC members. They have contended that the members of the DPC for 1987 and the 1991 were quite distinct and there was no question of any body being influenced or prejudiced against the applicant. They have also denied that the irrelevant questions were asked to the applicant and an impression was given that he would not to be selected. According to them, there was no consideration other than the performance of the applicant as assessed by the DPC in the personal interview and the assessment of the evaluation of the ACRs related for the period under review in the DPC proceedings. According to them, the allegations made by the applicant against the members of the DPC are false and baseless. They have prayed that the application be dismissed with costs.
3. The applicant has filed rejoinder affidavit and the respondents have filed sur rejoinder also. The learned advocates of both the parties have filed written arguments and have also made oral submissions.
4. The applicant has not only challenged the selection of 1991 but also the selection of 1987. There is no dispute that both the selection processes proceeded on the strength of O.M. dated 30.7.87 and that the selection procedure consisted of only oral interview along with consideration of ACR of the candidate. The O.M. dated 30.7.87 is in regard to the norms of Stenographic staff and the procedure for promotion to the newly created posts of Personal Assistant in the grade of 2000-3200. The O.M. inter alia provides that 15 posts of PA "B" (existing scale 1640-2900) had been up graded to the scale of 2000-3200 in DOS/ ISRO/Centers/Units. However, 5 posts in the same grade were also newly created during this year vide the O.M dated 23.7.87. It also acknowledges that this being newly created higher grade for stenographic staff in group B category, norms did not exist and therefore, the procedure for promotion for filling up of these newly created posts in the grade of Rs. 2000-3200 was laid down until further orders in this O.M. The O.M. further provides that "all the existing PA "B" in the scale of 1640-2900 grade shall be assessed by the DPC for promotion to the post of PA "C" in the grade of 2000-3200 and the elements for assessment will be as under:-
(a) interview : 70 marks
(b) ACR : 30 marks Total : 100 marks "However, to qualify for promotion, candidates should secure at least 60% marks in the aggregate with a minimum of 50% marks in each of the two elements of evaluation. The review will be as on the rationalison date of 1.9.87.
The DPC will assess the eligible candidates and draw up panels which will be valid for a period of 18 months from the date of its approval by the competent authority. Promotions will be effected based on the panel position, availability of vacancies in the respective center/unit and subject to the rules regarding reservation for SC/ST etc."
Para 4 of the O.M. makes it clear that the procedure laid down in the preceding paragraphs for promotion to the post of PA "C" will apply only during the initial phase of filling up of the posts newly created during this year and to be created during 1988-89 in respect of posts already approved for creation.
5. The contention of the applicant that the selection was to be merely to be seniority basis or seniority cum merit stands defeated by the bare reading of this O.M. It is quite obvious from the O.M. that the selection was to be merely on merit and not on seniority or on seniority cum merit. There is no dispute that 1987 selection was held for the purpose of newly created posts of P.A. "C" and according to the respondents, three candidates being eligible, were called for interview before the DPC. The applicant was one of them. Mr. Doctor has submitted from the files that in 1987 only one candidate was selected, while other two could not find place in the panel. The applicant was one of the candidates not selected in 1987 selection. Undisputedly he had not challenged that selection of 1987, immediately thereafter and had even appeared in the 1991 selection. It is therefore quite obvious that so far as the challenge to the selection of 1987 is concerned, the same is barred by limitation as well as acquiescence on the part of the applicant. The applicant is estopped from challenging the 1987 selection having participated in the 1991 selection. The question of 1987 DPC having been prejudiced against him and having not selected him because he made some allegations against the DPC members does not arise for consideration in view of the conduct of the applicant in not challenging the same and also having waived by appearing in 1991 selection. The applicant has attributed malice on the part of the members of the 1987 DPC in not selecting him and has even gone to the extent of re-producing the questions asked to him by different members of that DPC by maintaining that he had noted down these questions with answers while they were being asked to him. As observed above, so far as the question of 1987 selection is concerned, the same is not open for consideration as the applicant had failed to challenge that selection within time and having elected to appear in 1991 selection had even waived the right of challenge by acquiescence. Furthermore, it is not possible to believe that while interviewing he would have been in a position to note down the questions and answers given by him. It is also not possible to believe that for all these years he would not have taken any steps, if he was really aggrieved and was certain that on account of malice towards him the members of the then DPC of 1987 had not selected him. We, therefore, do not find any substance in these allegations.
6. On our asking, Mr. Doctor, learned advocate appearing for the respondents had brought the file of the 199 3 selection of PA "C" of the ISRO and perusing that file, we find that 1991 DPC comprised of 7 members whose names are as under:
(1)Dr. George Joseph Chairman (2) Shri OPN Calla Member (3) Smt. S.S Joshi Member (4) Shri K.S. Karnik Member (5) Smt. D. Rustogi Member (6) Shri M.M. Shah Member (7) Shri BGV Subrahmanyam Member Out of these seven members, admittedly Shri OPN Calla and Dr. George Joseph were members of the 1987 DPC also. The minutes of the promotion Committee showed that Shri OPN Calla was not present when the DPC was convened for applicant's interview. Now according to the applicant, he had made allegations of involvement of Mr. Calla, Mr. M.M. Shah, and B.M. Joshi in HBA case in his preliminary inquiry, and therefore, these three members were prejudiced against him. Mr. Doctor, learned advocate for the respondents has pointed out that out of these three persons against whom allegations were made by the applicant, only Mr. Calla was the member of the 1987 DPC, while Mr. M.M. Shah and Mr. Joshi were the members of the 1991 DPC. Mr. Doctor has further pointed out that Mr. M.M. Shah was the inquiry officer in the inquiry against the applicant in which the applicant has been exonerated in the year 1991. He has also further pointed out that Mr. M.M. Shah was not a member of 1987 DPC wherein the applicant was not found fit for promotion and was not promoted and hence the allegation that the DPC members were prejudiced against him stands nullified. According to Mr. Doctor this fact shows that the allegations of the applicant that the members of the DPC were prejudiced against him as he had made some allegations against them in baseless and false.He has also pointed out that the O.M. requires that the candidates should obtain minimum 60% marks in the aggregate with a minimum 50% in each of the two elements for evaluation and as applicant had not been able to obtain minimum 50% marks in ACR as well as interview, he was not selected for 1987 and 1991 DPC.
7. Now inquiry against the applicant was started by giving him a charge sheet on dated 16.9.87 on the ground of his availing HBA by deceitful means. According to the applicant, prior to start of this inquiry against him, in his explanation he had stated thai other officers had also obtained HBA on false grounds and had even given names of three persons who constituted the DPC of 1991. Now when the DPC of 1987 met on dated 8.4.87 no charge sheet was given to the applicant and no inquiry had started against him. There was therefore, no question of any member of the DPC of 1987 being deliberately prejudiced against him. Furthermore, so far as the 1991 DPC is concerned, except the bare averment that he had made some allegations against the three members of the DPC and thereby they were prejudiced against him, there is nothing to show that any of the member of the DPC was in fact prejudiced against him and bore some grudge against him. It transpires from the record that the result of the applicant was kept in a sealed cover as the inquiry proceedings against him were not over at that time. In his O.A., the applicant has concealed this fact of his result having been kept in sealed cover and ultimately the sealed cover having been opened, after he was exonerated of the charges in the inquiry. As observed above, he had made allegations against Mr. M.M. Shah one of the members of the panel and the same member Mr. Shah had exonerated him of the charges levelled against him and had passed a reasoned order in favour of the applicant. It is therefore, not believable that he would have been prejudiced against the applicant and had grudge against the applicant, Furthermore, the DPC of 1991 comprised of 7 members. Even if one of the members of that committee was prejudiced against the applicant, it cannot be said that others would also be similarly prejudiced against him and would not select the applicant. When the allegations of mala fides are made the applicant is required to adduce sufficient material on record to show that the members of the selection committee were really prejudiced against him and on account of this prejudice, he was not selected. Merely saying that because he had made some allegations against the members of the selection committee and therefore, he was not selected is not sufficient to prove mala fides on the part of the promotion committee members. In the case of M.S. Bindra v. Union of India and ors., 1999 (2) SLJ 96, the Supreme Court has observed that merely having a particular version cannot be a proof of mala fide. Sufficient material is required to be brought on record. In the instant case neither the DPC members of 1987 or 1991 are made parties in this O.A nor any cogent evidence regarding allegations made against them and the members acting prejudicially against him is adduced by the applicant and therefore, the question of mala fides of the member of the DPC of 1991 does not arise. We find no merit in this allegation and reject this contention of the applicant.
8. The applicant has then challenged the O.M. dated 30.7.87 prescribing the procedure for the selection to the post of PA "C". According to Mr. Pathak, learned advocate appearing for the applicant, the selection was based only on the consideration of two elements-interview of 70% marks and ACR of 30% marks and out of total 100 marks, the candidate was required to secure at least 60% marks in the aggregate with a minimum of 50% in each of the two elements. According to Mr. Pathak, there is no justification to give weightage of 70% marks for interview and that provision for minimum 50% marks as qualifying marks and to obtain aggregate 60% marks to be successful is also bad in law. Mr. Pathak has further submitted that the Supreme Court has laid down that prescribing more than 25% marks for oral interview is illegal and since in the instant case 70% marks are prescribed for oral interview, the whole procedure is vitiated and it requires to be set aside. He has further submitted that no guidelines are provided in the O.M. as to how the marks are divided and no norms are prescribed for awarding marks. In the absence of such guidelines, the elements of arbitrariness, creep in and it cannot be denied that the members were assessing the candidates in their absolute discretion and in the use of their arbitrary exercise of power. In support of his submission, he has relied upon the following decisions.
(1) A.K. Simpy v. State of Gujarat, 1993 GLH 36.
(2) Ajay Hasia Case, AIR 1981 SC 722=1981(2) SLJ 651 (SC).
(3) Peeriakar Uppani Case, AIR 1981 SC 2303.
(4) Mehu Case, AIR 1980 SC 1975.
(5) R.P. Sapru v. State of J&K, AIR 1981 SC 1001.
9. Mr. Doctor, learned advocate appearing for the respondents on the other hand has submitted that the impugned O.M, lays down the norms and mode of selection and there is nothing wrong in prescribing 70% marks for oral interview and 30% marks for ACR. According to him the selection was to be made purely on merit and since no written examination was prescribed, there was no reason not to prescribe 70% marks for oral interview and 30% marks for ACR. He has further pointed out that this is not a case of direct recruitment to a posts but it is a case of promotion from the lower category posts to the up graded posts. The candidate was required to be selected for promotion only on the basis of his performance and on the basis of his past record. Hence there was absolutely nothing wrong in prescribing 70% marks for interview as well as 30% marks for ACRs. Referring to the decisions cited by Mr. Pathak, he has submitted that none of these decisions apply to the instant case as this is not a case for direct recruitment to a post where the candidates selected are not known person to the department and they are to be selected only on the basis of the merit. Mr. Doctor has placed reliance on the following cases, (1) Anzar Ahmad v. State of Bihar, reported in AIR 1994 SC 141=1994(1) SLJ 187 (SC).
(2) A.P. State Financial Corporation v. Ashok Raju and Ors., reported in AIR 1995 SC 39=1995(1) SLJ 37 (SC).
He has also submitted that case of A.K. Simpy v. State of Gujarat lays down favourable ratio for the respondents rather than the applicant.
10. We have carefully gone through the decisions cited by both the learned advocate at the Bar. It is no doubt true that in the case of A.S. Yadav v. State of Haryana, and Ajay Hasia etc. the supreme Court has laid down that the allocation of 20% marks against interview was arbitrary and against law. However, distinguishing those cases, the Supreme Court has later on in the case of A.P State Financial Corporation v. Ashok Raju (supra), has held that the ratio in Ashok Kumar Yadav's case and other cases in line, is only applicable to those selections where written examination in addition to viva voce test is prescribed. In the selections/promotions where only viva voce test is provided, no limit can be imposed in prescribing the marks for the interview. Referring to the case of Anzar Ahmed v. State of Bihar (supra), the Supreme Court has held that the High Court was not justified in allocation of 25% for the viva voce test in Anzar Ahmed case (supra). Referring to the earlier decision wherein allocation of 50% marks for interview was held to be high, apex Court has laid down that the said decision appears to have been given in the particular facts of that case and it cannot be said to have laid down a law different from that laid down in the early decisions of this Court. It further says "We are unable to construe the said decision to mean that principles which govern the allocation of marks for interview in a selection based on written and viva voce test would also apply to a selection where no written test is held and the selection is based on interview only."
11. Both these decisions of the Supreme Court therefore make it amply clear that where no written test is prescribed, no limit can be imposed on prescribing the marks for the interview. Under the circumstances, so far as the instant case is concerned, it cannot be held that prescribing 70% marks for viva voce is illegal or arbitrary.
12. Same principle has been laid down by P.O. Desai (J) as he was then, in the case of A.K. Simpay v. State of Gujarat, (supra). He has observed as under:-
"In the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the most suitable way, subject to the basic and essential academic and professional requirements being satisfied. In the case of some other services, where sound selection must combine academic ability with personality promise, some weight may have to be given, though not great weight, to the interview test. Besides, there cannot be any rule of thumb regarding the precise weight to be given to the different tests. It must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. Furthermore, when the rules do not provide for the allocation of marks under different heads prescribed for a single test, it would be for the interviewing body to take a general decision whether to allocate marks under the different heads or to award marks in a single lot.
13. This decision also answers the submission of Mr. Pathak regarding non prescribing of the norms for the consideration by the DPC members. It was clearly open to the DPC members to lay down their own norms while assessing the merit of each candidate. Furthermore, it is laid down by the Supreme Court in the case of Durga Devi v. State of H.P., AIR 1997 SC 2618, that is the function of duly constituted committee to judge comparative merits of the candidates and fitness for the post and the administrative tribunal cannot sit as appellate Court and quash the selection by itself scrutinizing the comparative merits of the candidates. Referring to the case of Dalpat Abasaheb Solunke's reported in AIR 1990 SC 434 the Supreme Court has observed as under:-
"It is needless to emphasis that it is not the function of the Court to hear appeals over the decisions of the selection committees and to scrutinize the relative merits of the candidates. Whether a candidates is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The Court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala fides affecting the selection etc."
These decisions apply with full force to the facts of the instant case. So far as the question of mala fide is concerned, we find that the applicant has not adduced sufficient material on record to show that any of the members of the selection committee was prejudiced against him and had acted in mala fide in not selecting him. So far as the quashing of the O.M. is concerned, the same falls to the ground in view of the decision of the Supreme Court in the case of A.P. Financial Corporation v. Ashok Raju (supra). It cannot be held that merely because no norms are prescribed in the O.M. for holding the viva voce test, the O.M. becomes illegal or gives arbitrary powers to the selection committee members.
14. In view of the aforesaid discussion, we are of the opinion that the grounds on which the selection is challenged by the applicant have absolutely no substance. The O.A. is therefore devoid of any merit and deserves to be rejected. In the conclusion, the O.A. is rejected with no order as to costs.