Central Administrative Tribunal - Delhi
Dr. Sandeep Kumar Chaudhary vs Union Of India Through on 26 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.437/2011 with O.A. No. 438/2011 New Delhi, this the 26th day of April, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) O.A. 437/2011 1. Dr. Sandeep Kumar Chaudhary, Aged about 32 years, S/o Shri Sita Ram Chaudhary, R/o 1/314, Vibahv Khand, Gomti Nagar, Lucknow. 2. Shailendra Tripathi, Aged about 29 years, S/o Shri S.S. Tripathi, R/o 539, Kha-/84 Jha, Badi Jugauli, Gomti Nagar, Lucknow. 3. Ashsish Jaiswal, Aged about 29 years, S/o Shri Amar Chand Jaiswal, R/o 886/49, Anand Nagar, Jagai Purwa, Harjunder Nagar, Lucknow. 4. Atula Kumar Pradhan, Aged about 28 years, S/o Shri Bhagbana Pradhan, R/o Sagada Deuli, PO Sagada, Lucknow. 5. Neeraj Pal, Aged about 25 years, S/o Shri Sri Krishna Pal, R/o 61D/3D/4, Lucknow. 6. Dinesh Pratap Pal, Aged about 24 years, S/o Shri Sri Ram Pal, R/o 414-F/2, Buxi Khurd, Lucknow. 7. Amit Singh, Aged about 25 years, S/o Shri Daya Shanker Singh, R/o 531/55, Bada Chandaganj, Bhindiya Tola, Lucknow. 8. Dr. Arvind Tripathi, Aged about 28 years, S/o Shri D.K. Tripathi, R/o 111/8-D Block, Indira Nagar, Lucknow. 9. Pradumn Kumar Singh, Aged about 28 years, S/o Shri Harinam Singh, R/o 643-A/135B, Paltan Chhavni, Mohibullahpur, Lucknow. 10. Mayank Mishra, Aged about 27 years, S/o Late Shri Hari Saran Mishra, R/o 547Ka/2/81, Shivpuri, Pitambarkhera, Rajajipuram, Lucknow. 11. Shilpi Sharma, Aged about 26 years, D/o Shri Ram Krishna Sharma, R/o 426/160, Wazeerbagh, Saadatganj, Lucknow. 12. Biri Singh, Aged about 30 years, S/o Shri Chhitar Singh, R/o Village Barauli, Post & Tehsil Kiroli, Distt. Agra. .. Applicants O.A. 438/2011 1. Dr. Nirmala Shukla, Aged about 27 years, D/o Shri S.B. Shukla, R/o Type IV/3, Kendranchal Colony, Sector-K, Aliganj, Lucknow. 2. Dr. Km. Aparna Mishra, Aged about 24 years, D/o Shri D.D. Mishra, R/o 6, DAV College, Arya Nagar, Lucknow. 3. Nikhil Gupta, Aged about 24 years, S/o Shri Bhagwati Prasad Gupta, R/o 6/147, Near Aara Machine (Imlipur), Station Road, Kachchauna, Hardoi. 4. Sudhir Rai, Aged about 28 years, S/o Shri O.P. Rai, R/o A-3, Shivpuri, Near Bhumia Mandir, Kalyanpur, Ring Road, Lucknow. 5. Malik Hamid Mahmood, Aged about 28 years, S/o Shri Malik Mahmood Ali, R/o ASI Residency, Staff Quarter Residency, Golaganj, Lucknow. 6. Deepak Srivastava, Aged about 26 years, S/o Shri V.B.L. Srivastava, R/o E-2346, Rajajipuram, Lucknow. 7. Vinay Kumar Singh, Aged about 30 years, S/o Shri R.P. Singh, R/o 501/2, Kesharipur, Daliganj, Lucknow. 8. Shaivi Singh, Aged about 24 years, S/o Shri Ganesh Kumar Singh, R/o 1229, Sector 17-C, Near IFFCO Chowk, Lucknow. 9. Deepak Kumar, Aged about 32 years, S/o Shri Orauni, R/o 34, Ompurwa, Harjinder Nagar, Kanpur. 10. Reena Jaiswal, Aged about 29 years, D/o Shri Chandra Kumar Jaiswal, R/o 67, Gopal Nagar, Aara Machine, Kanpur. 11. Dr. Neha Yadav, Aged about 28 years, S/o Shri Mulkaraj Yadav, R/o II-158-A, Rest Camp Colony, Charbagh, Lucknow. 12. Archana Gupta, Aged about 32 years, D/o Shri K.M. Gupta, R/o 31/F-2, Badshah Nagar,Lucknow. 13. Gyanendra Singh, Aged about 31 years, S/o Shri A.S. Katiyar, R/o 539, Kha-84-Jha, Badi Jugauli, Gomti Nagar, Lucknow. 14. Vimal Tiwari, Aged about 30 years, S/o Shri Nand Kishore Tiwari, R/o 163/P, LIC Colony, Patel Nagar, Gonda. 15. Santosh Jha, Aged about 35 years, S/o Shri K.N. Jha, R/o Gulabbadi, Faizabad. 16. Dr. Deepsikha Srivastava, Aged about 28 years, D/o Shri C.B. Srivastava, R/o A-56 B, 40 Quarter, Railway Colony, Alambagh, Lucknow. 17. Jyoti Chaudhary, Aged about 28 years, D/o Dr. S.K. Chaudhary, R/o 24-A, Sindhu Nagar, Lucknow. 18. Archana Verma, Aged about 27 years, D/o Shri Om Prakash Verma, R/o 557/30, Om Nagar, Alambagh, Lucknow. 19. Sushant Kumar Pandey, Aged about 30 years, S/o Shri T. Pandey, R/o UD-II, Abhishek-486, Eldico Colony, Raibareilly Road, Lucknow. .. Applicants (By Advocate : Shri Girjesh Pandey & Shri Shiv Kr. Tripathi in both OAs) Versus 1. Union of India through Secretary Culture, Department of Human Resources Development, Govt. of India, Shastri Bhawan, New Delhi-11. 2. The Director General, Archaeological Survey of India, Janpath, New Delhi-11. 3. The Director (Administration), Archaeological Survey of India, Janpath, New Delhi-11. 4. The Chairman/Secretary, Staff Selection Commission, New Delhi. .. Respondents (By Advocate : Shri S.M. Arif for R-4 in both OAs) ORDER (ORAL)
By Honble Mrs. Meera Chhibber, Member (J) As the relief sought in both the OAs is same and even the counsel are also same, therefore, we are disposing of both the OAs by a common order.
2. 12 Applicants in OA No. 437/2011 and 19 applicants in OA No.438/2011 are aggrieved by the cut-off marks fixed by SSC for calling the candidates for the post of Assistant Archeologist (hereinafter referred to as AA). Both these OAs were initially filed in Lucknow Bench of the Tribunal. However, on an application moved by the respondents, the OAs were transferred to the Principal Bench by the Honble Chairman vide order dated 7.1.2011 in order to maintain consistency in the order.
3. It is submitted by the counsel for the applicants that all the applicants are highly educated persons and fulfill the qualifications mentioned in the advertisement No. SSC/Mu/1/2009 in Rozgar Samachar 22-28 August, 2009 for the post of AA at category No.23. All the applicants have received one year experience from the Archeological Survey of India (hereinafter referred to as ASI) and were waiting for the call letters but they were not called for the interview while other candidates were called for the interview. On enquiry, they were informed that only such candidates who had secured 70% and above in the essential qualifications were called to face the interview.
4. It is submitted by the applicants that no percentage of marks were fixed in the Notification, therefore, it was not open to the SSC to fix the 70% marks as a short-listing criteria for calling the candidates for interview. It is further submitted by the applicants that for admission in Institute of Archeology Survey of India, the prescribed percentage for General category is 55% in aggregate in Master degree in Ancient or Medieval Indian History/Archeology/Anthropology from a recognized university or equivalent. However, it is relaxable for SC/ST/OBC candidates and candidates working in the Archeological Organization, Central/State Government and University department. In other University also, 55% in the Master degree for any PG Diploma has been prescribed. There are so many candidates, who are PG Diploma and secured 55% in the Master degree but they have been left out without any cogent reason, which is bad in the eyes of law. The works and duties attached to the post of Assistant Archeologist involve responsible and experienced working, therefore, even if one secures 70% and above, is required to do PG Diploma to handle such type of work. In case, such candidates with 70% marks and above are selected, they will have to do PG Diploma. In such an eventuality, the respondents should have opted for those who are readily available.
5. They have thus stated that fixation of 70% marks in EQ for picking up the candidates is unreasonable and misconceived. The way of awarding marks in History is different to that of Sanskrit and Pali. Comparison of scoring subjects with the non scoring subject is bad and quite unreasonable, which requires to be interfered with. The post of Assistant Archeologist has been notified by the respondent No.1 to 3 after a gap of more than 4 years, due to which, the students of PG Diploma are receiving experience in other Institutions of Archeology Department. They are also performing the job related to workshops, writing of books and magazines and Seminar relating to Archeology etc. Despite the aforesaid facts, they are being left out on the basis of percentage arbitrarily fixed by the respondent No.4. It is very unfortunate state of affairs that the experienced PG Diploma holders and M. Phil and Ph.D. candidates have been ignored in comparison of the candidates with Master degree with 70% marks. It is very strange that a person with such vast experience and doctorate in the field are being ignored when they are being compared with a candidate, who has Master degree in Pali and Sanskrit. They have thus prayed that the OA may be dismissed.
6. Respondents have opposed this OA. While filing their application for transfer from Lucknow to Principal Bench, they have explained that pursuant to the advertisement issued by the SSC in the Employment News dated 22-28/8/2009, they had received 1750 applications for the post of AA whereas number of posts advertised were only 54, out of which 17 were for Un-Reserved, 14 for SC, 9 for ST and 14 for OBC and out of this also, 2 vacancies were reserved for OH candidates (OA, OL, PD) (page 17) against category No.23. After scrutiny of all the applications, 1366 applications were rejected on the ground of being overage, not meeting the essential qualification and short-listing basis. In the advertisement it was clearly mentioned under the heading Mode of Selection as follows:-
Candidates fulfilling the minimum prescribed qualifications will be sorted on the basis of their educational qualifications, academic records, percentage of marks etc. or through a screening test at the discretion of the commission. Candidates, thus, selected may be required to undergo a written proficiency test wherever applicable/required or considered necessary by the commission at its discretion. They have thus stated that it was made clear in the advertisement itself that SSC could resort to short-listing.
7. Number of other candidates who had not also been called for the interview had filed OA No. 2864/2010 by the name of Shri Rajesh Kumar and Others seeking the same relief but the OA was dismissed on 7.9.2010 after discussing all the points. Similarly another OA bearing No. 2594/2010 filed by Shri Vineet Godhal and another for similar relief was also dismissed by the Tribunal vide its order dated 1.9.2010. Both the above judgments were challenged by some of the candidates before the Honble High Court of Delhi by filing Writ Petition No. 6289/2010 and Writ Petition No.6201/2010 and the same have also been dismissed on 20.9.2010 and 25.4.2011 respectively. They have thus stated that since the issue has already been concluded right up to Honble High Court of Delhi, these OAs are also liable to be dismissed on this ground alone.
8. We have heard both the counsel and perused the pleadings also.
9. The same issue was raised in OA No. 2864/2010 by other candidates. While dismissing the said OA which was filed by similarly situated persons, it was observed as follows:-
7. From the records it is seen that though initially 54 vacancies were advertised for AA but subsequently they received requisition for additional 14 vacancies which increased the total number of vacancies for which selection is to be conducted by SSC to 68. They had received as many as 1750 applications for the post of AA. Number of applications were far too excessive then the number of vacancies. Moreover, in the advertisement itself SSC had made it clear that the candidates fulfilling the minimum prescribed qualifications will be shortlisted on the basis of educational qualification, academic records, percentage of marks etc. or through a screening test at the discretion of the Commission. From above it is clear that SSC had already made it clear in the advertisement itself that even those candidates who fulfilled the minimum prescribed qualification could be shortlisted meaning thereby that either of these criteria could have been adopted by the SSC for shortlisting the candidates. The respondents had put the cut-off marks at 70% and above in MA for UR category, 65% and above for OBC category, 65% and above for SC candidates and 55% and above for ST and PH candidates. Counsel for the respondents assured us that even after this cut-off marks sufficient number of candidates were available to be interviewed in each category and they have called total 384 candidates for interview as against 68 vacancies. By and large it is ensured that more than 5 times the candidates are called against the number of vacancies in each category but for ST and PH number of persons called for interview has been increased to ensure that they get suitable candidates from those categories also. According to us, this decision is based on an objective consideration which cannot be termed as arbitrary, more so when the same criteria has been adopted for all the candidates. It is not the case of the applicants that anybody with lesser cut-off marks in one category has been sent the interview call letter on which ground alone, applicants could have had a grievance. The question before us is whether it is open to the SSC to adopt a cut-off percentage in marks of MA for deciding the eligibility of the candidates to be called for interview or SSC ought to have looked into the academic records of all the candidates also. We have carefully consideration to the question posed before us.
8. It is now too well settled by the Honble Supreme Court that shortlisting can be resorted to even if there is no rule to this effect or mentioning in the advertisement as held by the Honble Supreme Court in the case of B. Ramakichenin Alia Balagandhi Vs. U.O.I. & Others reported in 2008 (1) SCC 362. However, it is emphasized that the decision of shortlisting must be rational and objective. It was further held that UPSC could not have deviated from the shortlisting criteria prescribed in the advertisement. It was held as follows:-
Method of shortlisting can be validly adopted by the selection body. Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the selection body, even though there is no mention of short-listing in the rules or in the advertisement.
However, for valid short-listing there have to be two requirements - (i) It has to be on some rational and objective basis; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed.
9. In Amlan Jyoti Borooah Vs. State of Assam and Others reported in 2009 (1) SCC (L&S) 627999 it was held that power to shortlist and the criteria adopted should not be subjected to judicial review, if it is reasonable and not arbitrary.
10. In Tridip Kumar Dingal and Others Vs. State of West Bengal and Others reported in 2009 (2) SCC (L&S) 119 it was held by the Honble Supreme Court that for the purpose of elimination and short-listing of huge number of candidates, the criteria adopted is bona fide and reasonable. In view of above, all that we have to see in the judicial review is whether decision of shortlisting taken by the Commission is bona fide and reasonable or arbitrary. We have already explained above, after looking into the records that large number of applications were received as against the number of vacancies advertised for the post of AA, therefore, it had become necessary for them to adopt the method of shorlisting for final selection. It was decided to put cut-off the marks in MA, as it was the essential qualification for the post of AA in such a way so that 5 times the number of vacancies, candidates are available for being considered. The cut-off marks was accordingly fixed as mentioned above which seems to be reasonable.
11. We have been informed by the counsel for the respondents that sufficient number of candidates are available with those cut-off marks for being considered for the post of AA. In view of the facts as explained above, we are satisfied that the decision taken by the SSC cannot be termed as unreasonable or arbitrary by any stretch of imagination. This criteria has been adopted for all the candidates who had applied for the post of AA, therefore, since this criteria is adopted uniformally, the applicants cannot have any grievance. They could have a valid grievance only if they could demonstrate that any person in their category with lower marks than the cut-off percentage has been considered by the SSC which is not the case here. We, therefore, find no justification to interfere in this case.
The Tribunal had also dealt with the judgments relied upon by the counsel for the applicants by observing as follows:-
In the case of Praveen Kumar Trivedi Vs. Public Service Commission reported in 1986 Lab.I.C. 4 posts of Presiding Officer of the Labour Court were advertised out of which 2 were for general category, 1 for SC and 1 for ST. Commission had received 75 applications out of 68 were in UR category, 3 from SC and 4 from ST. However, commission invited only 57 UR candidates and did not call the applicant even though he was eligible. Even in SC/ST one candidate was called. It was in these circumstances held that the number of 57 candidates who had been found eligible from the general category was not too large or excessive so as to make it difficult for PSC to interview those candidates. It is thus clear that the above said case was decided on the given facts of the case. This judgment, therefore, cannot help the applicants of the instant case in view of the fact that in the instant case the applications received were far more than the number of vacancies advertised.
This judgment was challenged by some of the candidates before the Honble High Court of Delhi by filing Writ Petition No. 6289/2010. The said Writ Petition was dismissed on 20.9.2010 by observing as follows:-
As long as the screening process does not suffer from the vice of irrationality or discrimination, merely a better methodology being available to screen the candidates who have responded to the advertisement issued by R-4 would not entitle courts to intervene.
Accordingly, we dismiss the writ petition in limine.
10. The present case is fully covered by the above said judgment. It is clear from the facts as mentioned above that no illegality can be said to have been committed by the SSC, if they resorted to short-listing because number of applications received were far more than the number of vacancies advertised, we find no good ground to interfere in this case. Accordingly, both the OAs are dismissed. No order as to costs.
Let a copy of this order be placed in both the files.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh