Jharkhand High Court
The Union Of India Through The Secretary vs Mausami Rani on 22 March, 2018
Equivalent citations: 2018 (3) AJR 517, (2018) 2 JCR 658 (JHA)
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6704 of 2014
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1. The Union of India through the Secretary, ESI Corporation, New Delhi
2. Director, ESI Corporation, New Delhi
3. Joint Director, ESI Corporation, New Delhi ------ Petitioners Versus
1. Mausami Rani
2. Shikha Shovana --- --- Respondents With W.P. (S) No. 1291 of 2016 Shikha Shovana ------ Petitioner Versus
1. The Union of India through the Secretary, Employees State Insurance Corporation, New Delhi
2. The Director, Employees State Insurance Corporation, New Delhi
3. Joint Director, Employees State Insurance Corporation, New Delhi
4. Mausmi Rani --- --- Respondents
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CORAM:The Hon'ble Mr. Justice Aparesh Kumar Singh The Hon'ble Mr. Justice Ratnaker Bhengra For the Petitioners: Mr. Ashutosh Anand, Advocate in WPS 6704/14 Mr. Manoj Tandon, Advocate in WPS 1291/16 For the Respondents: Mr. Ashutosh Anand, Advocate in WPS 1291/16 M/s Shresth Gautam, Gaurav Abhishek, Advocatesin WPS 6704/14& WPS 1291/2016
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12 / 22.03.2018 Heard counsel for the parties.
2. It is the order dated 10.10.2014 passed by the Learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi in O.A. No. 78 of 2013 (R) with M.A. No. 18/2013 (R) with which both the writ petitioners are aggrieved. Writ petitioners in WPS No. 6704/2014 is the Union of India and Employee's State Insurance Corporation, while the writ petitioner in WPS No. 1291/2016 was the private Respondent in Original Application whose appointment is in jeopardy in view of determination made by the Learned Tribunal on the original application preferred by the applicant.
3. The canvass of the facts which is undisputed between the parties are being referred to hereinafter. For convenience sake, facts as are on record in WPS No. 6704/2014, are being referred to hereunder:
The present dispute relates to the recruitment exercise for the post of Dietician in unreserved category in E.S.I. Hospital at Adityapur under Advertisement No. 52/60 published in the Employment News of the edition 2 dated 28th March-03rd April 2009. It prescribed the following eligibility criteria for the candidates.
"(1) Dietician:
(a) Essential: Master Degree in Dietetics or Nutrition or Bio-Chemistry or in Home Science or Home Education with Nutrition as a subject from a recognized University or equivalent OR B.Sc. (Home Science / Home Economics) with Nutrition as a special subject from recognized University or equivalent with Post Graduate Diploma in Dietetics from a recognized institute and one year practical experience in the Dietetics department of a Hospital.
(b) Desirable: Research or Practical experience in the field of Nutrition and / or related subjects.
(C) Age not exceeding 30 years. (Relaxable for Govt. servant & employees of ESIC up to 5 years in accordance with instructions and orders issued by Central Govt."
4. The Advertisement is Annexure-1 series part of the O.A. No. 78/2013 to WPS No. 6704/2014. As per Clause-C, 'Examination Centre', the written examination (objective type) and / or interview shall be held in Gurgaon (Haryana) / Ranchi (Jharkhand). Clause-D contained the instruction to candidates 'how to apply'. Sub Clause 7 provided that Corporation reserves the right to call candidates for written examination or interview or both. Participation of the applicants and the private Respondent (writ petitioner in WPS No. 1291/2016) in the written test and in the interview, is not in dispute, neither is there any dispute about the eligibility of these persons under the terms of the advertisement. The marks obtained by the two candidates in the written test and interview are as under:
Written Test:
Mausmi Rani (applicant / Private Respondent herein) - 68 Shikha Shovana (Private Respondent / writ petitioner in WPS 1291/2016) - 55 marks.
5. Eight Candidates were shortlisted for interview. As per the merit list published after interview, Shikha Shovana got 78 marks whereas Mausmi Rani (applicant) got 65 marks. Rest of the candidates were found ineligible. Shikha Shovana was appointed as Dietician on 07.03.2011 pursuant to final results published on 10.06.2010 (Annexure- 6 to the writ application).
6. After publication of the results, the applicant / private Respondent applied under R.T.I. through application dated 22.06.2010 to E.S.I. Corporation inter-alia, seeking answer to the three questions, (i) marks of written examination of below mentioned roll nos. i.e. (8), (ii) marks obtained in interview and overall marks and ranking of below mentioned roll nos. i.e. (8) and (iii) name of candidates of below mentioned roll nos.
3CPIO provided the desired information through letter dated 29.07.2010 which is at page-64 to 67 of the writ application 6704/2014.
7. Breakup of marks, names, category including date of birth of the candidates shortlisted for interview in the objective test is at page 66. It indicates that the applicant got 68 marks while Shikha Shovana got 55 marks. The final merit list at page 67 shows the marks obtained by the two candidates. However, the applicant made an appeal under section 19(1) of the RTI Act, 2005 on 05.08.2010 to the Appellate Authority seeking further information inter-alia;
1. Maximum marks of written examination and marks secured by all candidates in interview.
2. Maximum marks of interview and marks secured by all candidates in interview.
3. Proforma adopted for preparing overall merit list of candidates with example.
4. Overall merit list of candidates with showing in one table.
a) Maximum marks of written examination
b) Marks obtained in written examination.
c) Maximum marks of interview.
d) Marks obtained in interview.
e) Overall marks counted for merit list.
f) Marks obtained by each candidate for merit list.
8. The Appellate Authority provided the information through letter dated 17.09.2010 which is at page 69 to 72 of the writ petition. In response to the point no. 1, it stated that maximum marks of written examination were 120 and List of marks is enclosed herewith of all eight candidates. In respect of point no. 2, it is stated that maximum marks of interview were 100 and list of marks is enclosed herewith for all candidates. In respect of point no. 3, it is stated that candidates are selected on their merit in interview. In respect of point no. 4, it was stated same as point no. 1 and 2. The enclosed list are in the similar fashion as the information provided by the CPIO.
9. The applicant approached the Administrative Tribunal in the year 2013 with a prayer that the Respondents be directed to appoint her on the post of Dietician in E.S.I. Hospital at Adityapur in the pay scale of Rs. 6500-10,500/ and also sought for cancellation of appointment and setting aside the Notification dated 10.06.2010 i.e. final result (Annexure-6 thereto), wherein the private Respondent therein Shikha Shovana have been illegally appointed by the Respondent. The applicant also sought condonation of delay in preferring the original application after about three years of declaration of results through M.A. No. 18/2013 (R). Learned Tribunal heard the Corporation and private Respondent and upon consideration of the pleadings on record, came to the conclusion that the 4 rules / procedure for recruitment were not clearly spelt out in the Notification / Advertisement. 100% Subjective assessment is fraught with risks and frowned upon. The Advertisement nowhere stipulated that written examination will be only for short listing the candidates for interview; all appointments shall be made on the basis of performance in the interview. It was only in the call letters sent to the candidates for interview that it was stipulated that the selection will be on the basis of performance in the interview. It has not been clearly stipulated that the marks of the written examination will not be computed in determining the most meritorious candidates. Stipulation introduced in the call letter for interview were after thought. Therefore, the Respondents by ignoring the substantive merit evident from the results of the written examination, have raised serious question about the objectivity, arbitrariness and transparency of the recruitment process. Learned Tribunal held that exclusion of the marks of written examination cannot be justified or upheld as it was without any rationale or justifiable basis. It accordingly allowed the prayer of the applicant made in para-8 of the original application with a direction to the Respondents to take appropriate consequential and corrective action within three months.
10. To complete the narration at this stage, it would be relevant to mention the terms contained in the call letter for interview dated 03.02.2010 issued to the applicant Mousami Rani. It inter-alia stipulated that the mere fact that the candidates were called for interview by the Corporation does not in any way guarantee that they will be selected. Selection will be made on the basis of their performance in the interview and that he possess the minimum qualification / experience and satisfies other essential conditions laid down for the post.
11. In the aforesaid backgrounds facts, the writ petitioner have assailed the impugned order inter-alia on the following grounds,
(i) Original application was wholly barred by limitation and the cause of action had become stale,
(ii) The applicant conscious of the terms and conditions of the advertisement and the stipulations contained in the interview letter, participated in the recruitment process and having done so, can't question the procedure adopted in the recruitment exercise,
(iii) Applicant should not be permitted to be approbate or reprobate the same time, 5 The terms of the advertisement itself provided that the examination would be objective type and / or interview. The Corporation reserved the right to call any candidate for written examination or interview or both. The objective type test through multiple choice question was in the nature of screening test to shortlist the candidates. Amongst the shortlisted candidates, selection was to be made on the basis of interview of 100 marks.
12. Learned Tribunal has therefore committed an error of law allowing the Original Application in a belated challenge to the recruitment exercise when the selected candidate had been appointed on 07.03.2011 itself and served for two years by that time. It is submitted that the applicant approached the Learned Tribunal without making any representation in terms of section 20(2) of the Administrative Tribunal's Act, 1985.
13. Learned counsel for the applicant / private Respondent submits that though terms of the Advertisement provide for written examination (objective type and / interview), the Respondent Corporation conducted both objective type written examination and also called the shortlisted candidates for interview. The result of the written examination contain the marks obtained by the shortlisted candidates. It did not simply disclose the list of the number of candidates who had qualified. In that way, it cannot be considered as a screening test. Stipulation in the interview letter that appointment would be made only on the basis of performance in interview amounted to change in the terms of the advertisement during mid-course which is impermissible in law. If the total marks obtained in the written (objective test) and interview of the two candidates are calculated, both candidates, the applicant and Shikha Shovana, have fetched 133 marks. In such a situation, in the absence of any rules to the contrary, a candidate elder in age should be conferred appointment. The date of birth of the applicant was 10.02.1080 compared to the selected candidate Shikha Shovana i.e. 31.12.1982. He has relied upon the judgment rendered by this Court in the case of Arbind Kumar Singh vs. The State of Jharkhand [(2012) 4 JLJR 46] in support. Learned counsel has also relied upon the judgment rendered by the Apex Court in the case of Davinder Pal Sehgal and another vs. Partap Steel Rolling Mills Pvt. Ltd and others [(2002) 3 SCC 156]on the point of condonation of delay. It is submitted that the Learned Tribunal had rightly held that belated challenged in such circumstances would not bar the remedy, since the rules / procedure for 6 recruitment have not been clearly spelt out in the advertisement and have been altered during course of the recruitment process.
14. We have considered the submissions of the learned counsel for the parties and also the relevant materials borne out from the pleadings on record. The salient features which emerged out of the undisputed materials on record are inter-alia as follows:
The Petitioner E.S.I. Corporation initiated recruitment exercise for a number of posts including that of Dietician vide Advertisement No. 52/60. Only one post for Dietician was advertised on which the appointment was to be made from the unreserved category. Terms of the advertisement at Clause-C, noted above, show that there would objective type test and / or interview as well. The objective type test was for 120 marks and interview was for 100 marks. Eight candidates were shortlisted including these two applicants. Interview letter however contained stipulation that the selection will be made on the basis of performance of the candidate in interview and by fulfilling the minimum qualification / experience. Other criteria have also been laid down for the post. Results of the test were published on 10.06.2010 itself showing the private Respondent as the only selected candidate bearing roll no. 36100028. The applicant sought information under the RTI through his application dated 22.06.2010 and 05.08.2010 before the Appellate Authority. All the desired information were duly supplied to her by letter dated 29.07.2010 and 16.09.2010 respectively. The appointment of the selected candidate was made on 07.03.2011. The original application was filed only in 2013 after about three years after declaration of results and about two years of the appointment of the selected candidate. Such an inordinate delay on the part of the applicant in raising a cause of action has not been adequately dealt with by the Tribunal. On the other hand, a vested right has been created in favour of the selected candidate i.e. the third party which cannot be defeated if there is unexplained delay and latches on the part of the aggrieved person in approaching the court of law / forum.
15. In the facts of the present case, taking an overall view of the matter, it cannot be said that the Corporation can be accused of not having adopted an uniform procedure in the matter of recruitment. The written examination was not a subjective test in its true sense, but an objective test having multiple choice question. In many such recruitment exercises, objective type test through multiple choice questions are held as a screening test to eliminate large number of applicants for shortlisting the candidates. In the 7 instant case, candidates were duly informed at the stage of interview that their appointment would be made only on the basis of performance in the interview and mere call letter for interview does not guarantee selection. The applicant despite being conscious of the stipulation, participated in the interview and even after having obtained all requisite information through RTI by September 2010, chose to sit quiet. She approached the Learned Tribunal in 2013 after a delay of about three years which is fatal to the case of the applicant. The observation of the Learned Tribunal that the entire recruitment exercise suffers from lack of transparency, is not justified. The applicant, as per her best case, has claimed that since the total marks obtained in written examination and interview by the candidates were equal, the applicant being elder in age, should have been appointed. However, in the light of the discussions made herein-above, we do not find that the procedure adopted by the E.S.I.C. was arbitrary or amounted to change in the rules of the game in the midway. As an upshot of the aforesaid discussions, we are unable to uphold the findings of the Learned Tribunal. Accordingly, the impugned order is set aside. Writ petitions stand allowed.
(Aparesh Kumar Singh, J) (Ratnaker Bhengra, J) Ranjeet/