Central Administrative Tribunal - Jodhpur
Devendra Singh vs M/O Finance on 19 March, 2020
1
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.290/00219/2015
Reserved on : 02.03.2020
Jodhpur, this the 19th March, 2020
CORAM
Hon'ble Smt Hina P. Shah, Judicial Member
Hon'ble Ms Archana Nigam, Administrative Member
1. Devendra Singh son of Shri Anand Singh, aged about 26
years, at present employed on the post of Stenographer
Grade D in the office of Commissioner of Income Tax
(Appeals)-1, Paota 'C' Road, Jodhpur.
2. Jabra Ram son of Shri Hastimal, aged about 31 years, at
present employed on the post of Stenographer Grade D in
the office of Commissioner of Income Tax-2, Paota 'C'
Road, Jodhpur.
3. Suresh Kumar son of Om Prakash, aged about 25 years, at
present employed on the post of Stenographer Grade D in
the office of Dy Director of Income Tax (Investigation),
Sriganganagar.
...................Applicants
By Advocate : Mr J.K. Mishra.
Versus
1. Union of India through Secretary to the Government of India,
Ministry of Finance, Deptt. Of Revenue, North Block, New
Delhi.
2. Director General of Income Tax (HRD), CBDT, Deptt. Of
Revenue, Ministry of Finance, Govt. of India, 2nd Floor,
2
ICADR Building, Plot No. 6, Vasant Kunj, Institutional Area,
Phase-II, New Delhi-110070.
3. Principal Chief commissioner of Income Tax, Rajasthan.
4. Principal Commissioner of Income Tax-I, Paota C Road,
Jodhpur.
........Respondents
By Advocate : Mr Sunil Bhandari.
ORDER
Per Smt. Hina P. Shah The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief(s) :
(i) That the applicants may be permitted to pursue this joint application on behalf of three applicants under rule 4(5) of CAT Procedure Rule 1987.
(ii) That the respondent may be directed to treat the applicants as eligible for Departmental Exam 2014 and declare their result of the same as has been done in case of similarly situated persons. The applicant may be allowed all consequential benefits. The impugned order dated 30.12.2014 (Annex. A/1) and order dated 19.05.2015 (Annex. A/2), may be directed to be modified by interpolating the names of the applicants at appropriate places.
(iii) That any other direction, or order may be passed in favour of the applicants, which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.
(iv) That the costs of the application may be awarded.
2. Brief facts of the case as averred by the applicants are that all the applicants were selected to the post of Stenographer Grade D under relaxed standard vide SSC letter dated 31.03.2012 3 with the condition to pass the Skill Test of Stenographer within the period of probation (Annex. A/3). The applicants were accordingly appointed w.e.f. 25.07.2012, 21.11.2012 and 21.08.2012 respectively. The applicant No. 1 and applicant No. 3 qualified the Skill Test held by the SSC in the year 2012 as per criterion in vogue. The applicants were allowed to undertake Departmental Examination for Ministerial Staff 2013 vide letter dated 24.09.2012 and they qualified in three and two papers respectively, out of four papers. applicant no.3 qualified the same with mistakes within prescribed limit as per Recruitment Rules i.e. upto 7% having got 6.09% mistakes vide Skill Test result of 2012 examination. Thereafter a Departmental Examination for Ministerial Staff 2014 was conducted in 2014 and applicants were granted provisional permission to appear in the same vide letter dated 28.03.2014 (Annex. A/6) at the instructions of respondent No. 2. The applicants appeared in the said departmental examination and result of the same was declared vide letter dated 30.12.2014. The grievance of the applicants is that the applicants were provisionally allowed to appear in the examination and result of all those candidates who were provisionally allowed to appear in the said examination was cancelled despite the fact that applicants No. 1 & 2 qualified in the Skill Test of Stenography held on 26.12.2014 by the SSC (Open Exam-2014) and secured marks with mistakes upto 7% as 4 per prescribed norms for reserved category for qualifying the examination vide clarification letter dated 04.02.2013 (Annex. A/8). The applicant No. 1 qualified with mistakes upto 6.98% and applicant No. Qualified with 4.8% mistakes respectively and their result were declared on 17.02.2015 (Annex. A/9). Thus, applicants immediately sent result of the open examination through individual representations dated 25.02.2015 (Annex. A/10) but there has been no response from the respondents on their representations. However, result of seven similarly situated persons has been declared vide order dated 19.05.2015 and these seven person were also permitted to appear in the Departmental Examination for Ministerial Staff - 2014 on provisional basis with the condition of passing skill/proficiency test before declaration of the result of Departmental Examination 2014. But, respondents did not declare results of the applicants and accordingly applicants submitted their individual representations on 22.05.2015 (Annex. A/13). The contention of the applicants herein is that one who passes in the said departmental examination would be eligible for appearing in the next departmental examination meant for promotion to the post of Inspector of Income Tax which has already been notified vide notification dated 23.04.2015. Since applicant No. 2 would require to appear in the said departmental examination as he remained absent in one of the paper but Applicant No. 1 and 3 5 would be eligible for appearing in the Inspector of Income Tax Examination, 2015 in case they passed the said departmental examination. However, result of the applicants who have been provision allowed to appear in the Ministerial Staff Examination 2014 has been cancelled vide impugned order dated 30.12.2014, therefore, applicants have approached this Tribunal seeking modification in the same as prayed in the reliefs.
3. The respondents filed reply on 05.09.2016 raising therein preliminary objections that the applicant did not disclose the fact that applicant No. 1 & 2 had appeared in the skill test but failed to qualify the same with prescribed requisite standards during the period of probation. The applicant gave an undertaking that they would clear the skill test with prescribed norms and standard during their probation period and thereafter, their probation would be cleared. The applicants were required to qualify the skill test prior to the declaration of the result of Departmental Examination for Ministerial Staff - 2014 in which they were provisionally permitted to appear but applicant No. 1 and applicant No. 2 failed to qualify in the skill/proficiency test prior to the declaration of the result of Ministerial Staff Examination - 2014. Rather applicant No. 1 & applicant No. 2 qualified the skill/proficiency test held on 25.05.2016, result of the same declared on 02.06.2016. Lastly, respondents have raised the preliminary objection that the applicants have not 6 impleaded Staff Selection Commission (SSC) as party- respondent as the matter can only be effectively adjudicated in the presence of SSC.
While giving parawise reply to the OA, respondents have stated that keeping in view large number of vacancies remaining unfilled in the Open Examination of 2011 conducted by SSC, it was decided by the SSC to issue an additional reserve list, i.e. Reserve List -2 of candidates with relaxed standards for the posts remaining vacant in CBI and CBDT with 15% mistakes for Unreserved Category and 20% mistakes for other category. The applicants herein did not qualify the skill test with the requisite standards but under the relaxed standards of 15%/20% mistakes. Thus, applicants selected for the post of Stenographer Grade D through Open Examination, 2011 conducted by SSC subject to the conditions stipulated in para (3) & (7) of the letter dated 31.03.2012 (Annex. A/3). Candidates selected under such relaxed standards were required to meet the Skill Test Norms and prescribed accuracy level within their probationary period failing which their services were liable to be terminated. The applicants were very well known to these conditions. Due to inadvertence, the offer of appointment issued to the applicants did not incorporate these conditions, therefore, a clarification/corrigendum dated 11.12.2012 to this effect was issued and even the applicant had submitted their undertaking in 7 that regard. Being selected under relaxed standards and after failed to qualify the prescribed standards during their probationary period or prior to the declaration of result of Ministerial Staff Examination 2014, the applicant had approached this Tribunal with absolutely unjustified grievance which deserves no credence.
The respondents further averred that applicant No. 3 qualified the Stenographer Grade D Examination, 2012 conducted by SSC with 6.09% mistakes but the applicant No. 1 did not qualify the said examination as his level of mistakes was 8.85%, i.e. beyond the prescribed cut off, therefore, in view of order dated 30.01.2013 issued by the SSC, the applicant No. 3 has been declared successful in qualifying the skill/proficiency test. Hence, nothing survives for adjudication so far as applicant No. 3 is concerned.
Respondents further averred that Ministerial Staff Examination are held on yearly basis and eligibility of candidates appearing in the said examination is decided by the Directorate of Income Tax [ DIT (Income Tax)] as per the norms and clarification issued thereof . DIT (Income Tax) has issued clarification on 18.09.2013 that only those stenographers who have attained the prescribed standards in the Skill Test within the stipulated period are eligible to appear in the Deptt. 8 Examination for Ministerial Staff. Vide order dated 22.05.2014 (Annex. A/7), Director of Income Tax (Exams) issued clarification that Stenographer Grade D appointed with relaxed standards in the Open Examination, 2011 may be provisionally permitted to appear in the Ministerial Staff Examination, 2014 subject to the condition that their result of Ministerial Examination, 2014 shall be declared only if they have actually qualified the requisite proficiency test, i.e. qualified the Skill Test Norms before the result of Ministerial Staff Examination, 2014 failing which their candidature would stand cancelled. Accordingly, applicant No. 1 & applicant No. 2 were permitted to appear in the Ministerial Staff Examination 2014 but they did not clear proficiency/skill test, therefore, their result was not declared and same was cancelled vide order dated 19.05.2015 (Annex. A/2). The SSC conducted the skill test for these candidates appointed under relaxed standards on 23.08.2014 and 27.10.2014 but applicant No. 1 & applicant No. 2 failed to qualify the same with prescribed standards.
The respondents further averred that applicant No. 1 & applicant No. 2 did qualify open examination 2014 conducted by SSC for Stenographer Grade D with prescribed requisite norms therein but for which they could have sought selection afresh under the said open examination and could not get the benefit for their selection under the relaxed standards for the open 9 examination, 2011. The said applicants did not opt to chose the same.
With regard to seven similarly situated candidates, respondents have stated that in view of letter dated 01.04.2015 enclosing order dated 26.12.2014 issued by the SSC, the result of Ministerial Staff Examination, 2014 in respect of these candidates was declared as they qualified the Skill Test conducted on 27.10.2014 and their result was declared prior to 30.12.2014, i.e. date of declaration of result of Ministerial Staff Examination, 2014.
Thus, respondents have prayed that the present Original Application may be dismissed by this Tribunal with exemplary costs.
4. Applicants filed rejoinder bringing out a chart at page 84 showing the comparison of the applicants with other Stenographers who were allowed to appear in the Ministerial Staff Exam-2013 on the ground of qualifying the regular / open Skill -Test under Stenographer Gr. C & D Exam-2012 conducted by SSC and the result of the same was also declared. It is their contention that at the time of declaration of result of Ministerial Staff Exam-2013, applicant no.1 could only qualify 3 out of 4 papers and accordingly, he had to re-appear in only one pending paper during Ministerial Staff Exam-2014, but the Department 10 vide letter dated 30.12.2014 cancelled the result of applicant no.1 treating him amongst the normal relaxed category Stenographers Grade II (Stenographer Grade D). It is surprising that the Department had ignored the fact that applicant no.1 had already been declared eligible for the Departmental Exam vide the then CIT-1, Jodhpur's letter dated 24.09.2013 which was issued in compliance to the Department's letter dated 18.09.2013. Once the applicant has already been declared eligible for the departmental exam, his eligibility for the same exam in subsequent years cannot be cancelled later on. This is fortified from the fact that the eligibility of similarly situated candidates mentioned in the list above was never cancelled. This is a discriminatory act of the Department. It is further stated that Shri Gopi Kishan Upadhayay and Shri. Bharat Agarwal who belong to Unreserved category (General Category) at serial no. 4 & 7 respectively in the list stated above including the applicant no.1 at serial no.3 were allowed to appear in the Ministerial Staff Exam-2013. These two persons qualified the regular / open Skill Test in 2012 with 6.02% and 9.55% mistakes respectively and applicant passed with 8.85% mistakes. On the basis of the same list, they were allowed to undertake further departmental exams but applicant no.1 is not allowed to participate. Their results were never cancelled, whereas applicant no.1 unnecessarily suffered the loss.
11
5. The applicants have also filed additional affidavit stating that the applicant no. 1, in compliance to DIT (Exam), New Delhi letter dated 18.09.2013 following relaxed category Stenographers including Applicant no.1, was allowed to appear in the Ministerial Staff Exam-2013 on the ground of qualifying the open Skill Test in Stenographer Gr. C & D Exam, 2012, conducted by SSC and the result of the same was also declared vide letter dated 27.12.2013. In the Ministerial Staff Exam- 2013\, the applicant no.1 could only clear three out of four papers. For pending one paper, he had to re-appear in the Ministerial Staff Exam-2014. At the time of declaration of result of Ministerial Staff Exam-2014, the Department vide letter dated 30.12.2014 cancelled the result of Applicant no.1 treating him amongst normal relaxed category Stenographer Gr.II and ignoring the fact that applicant no.1 had already been declared eligible for the Departmental Exam vide the then CIT-1, Jodhpur letter dated 24.09.2013(Annexure A-19) which was issued in compliance to the letter dated 18.09.2013. On the other hand, Gopi Kishan Upadhayay and Bharat Agarwal passed all four papers of Ministerial Staff Exam-2013 and in the subsequent years, they appeared in Departmental Exam for Inspectors 2014 & 2015. It is pertinent to mention that both of them belong to Unreserved category (General category) and qualified open Skill Test of SSC-2012 with 6.02% and 9.55% respectively, but their 12 results with respect to Departmental Exam for Ministerial Staff
-2013 and Departmental Exam for Inspectors -2015 were declared without objecting to the percentage of their mistakes in the Open Skill Test of SSC-2012.
5. Heard Mr J.K. Mishra, learned counsel for the applicants and Mr Sunil Bhandari, learned counsel for the respondents.
6. Learned counsel for the applicants besides reiterating stand of the applicants have stated that admittedly the applicants have passed the requisite skill test in stenography held on 26.12.2014 by the SSC along with the similarly situated persons and both the examinations were held in June 2014 after Departmental Exam for Ministerial Staff Exam-2014. He further added that the results of both the exams were declared subsequent to the declaration of the result of Departmental Exam for Ministerial Staff Exam-2014 i.e. 30.12.2014, rather the result of similarly situated persons was declared on 11.05.2015, but the Applicant no.1 & 2 have been treated as a separate class and their result of Departmental Exam has not been declared without any cogent reasons. Therefore, the impugned orders are not sustainable in law and deserve to be modified/amended suitably be interpolating the names of the applicant no.1 & 2. Though applicants have made representations to that effect but the same has not been properly dealt by the respondents and applicants 13 are treated as neglected for reasons best known to them. Therefore, the applicants approached the Hon'ble Tribunal for redressal of their grievances.
7. On the other hand, learned counsel for the respondents besides reiterating stand of the respondents taken in the reply relied on the Apex Court judgement in case of Karnati Ravi & another V/s. Commissioner, Survey Settlements & Land Records & others reported in AIR 2017 SC 3611, which reads as under :
5. It may be seen that even a written examination is not a procedure prescribed under the Rules. The Rules only provide the essential qualifications for the post. The method of selection, in the absence of Rules has to be supplied by the executive instructions. All the appellants have appeared in the written examination. They were also subjected to a physical endurance test which they could not qualify. It is, thereafter, the unsuccessful candidates in the physical endurance test put up a challenge regarding the validity of the executive instructions whereby physical endurance test has been prescribed.
6. As we have already noted above, in the absence of the Rules, it is well within the powers of the Executive under Article 162 of the Constitution to provide for the required instructions with regard to the procedure for selection, so long as they do not come in conflict with the Rules.
7. That apart, all the candidates have participated in the selection, both in the written examination, though not a prescribed one, for which there is no objection, as also the physical endurance test. Having participated in the selection without any objection, they cannot later challenge the procedure.
He thus submitted that the candidate participating in the selection without any objection cannot challenge the procedure 14 at a later point of time. He also relied upon judgment in case of Ashok Kumar V/s. State of Bihar reported in (2017) 4 SCC 357, which reads as under :
11. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
12. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar[5], this Court held that :
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil[6] and Rashmi Mishra v. M.P. Public Service Commission[7])."
The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. In Manish Kumar Shah v. State of Bihar[8], the same principle was reiterated in the following observations :
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the 15 merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission.
This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 :
(2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171, AmlanJyotiBorooah v. State of Assam MANU/SC/0077/2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (supra)."
In Vijendra Kumar Verma v. Public Service Commission[9], candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations.
The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible. In Ramesh Chandra Shah v. Anil Joshi[10], candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :
"18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome." In Chandigarh Administration v. Jasmine Kaur[11], it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep 16 Kumar Rai v. Dinesh Kumar Pandey[12], this Court held that :
"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared.
There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam[13].
13. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90:10 allocation.
XXXXXXXX
15. In this view of the matter, the Division Bench cannot held to be in error in coming to the conclusion that it was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. During the course of the hearing, this Court is informed that four out of six candidates, who were ultimately selected figured both in the first process of selection as well as in the subsequent selection. One candidate is stated to have retired.17
He thus submitted that when a candidate appears at an examination without objection and is subsequently found to be unsuccessful, a challenge to the process is precluded. He further stated that by way of interim protection by this Hon'ble Tribunal vide order dated 27.05.2015, the applicant no.1 & 3 were permitted to appear in the Departmental Exam-2015 for ITI-2015 on provisional basis, but their results of the exam of ITI would necessarily be subject to them having fully declared successful in Ministerial Staff Exam. It was further clarified that that permission to appear would not by itself create any right in their favour either for Ministerial Staff Exam or for ITI Examination-2015. Also as per the order of this Hon'ble Tribunal dated 11.07.2016, applicant no. 1 & 2 were allowed provisionally to appear for the examination of Inspector of Income Tax-2016, but it was clarified that the same would not by itself create any right in their favour for the ITI Examination -2016. Therefore, in view of their submissions made, both these orders dated 27.05.2015 as well as 11.07.2016 will not give them any further right / protection as there is no justification for their stand. The present OA is thus deserves to be dismissed.
8. We have considered the arguments advanced by learned counsels for the parties and gone through the material available on record.
18
9. The applicants are permitted to pursue this joint application on behalf of three applicants. However, at the outset, counsels for the parties jointly submit that since applicant No. 3 had qualified the Skill/Proficiency test being selected under relaxed standards, therefore, nothing survives for adjudication with respect to applicant No. 3. Learned counsel for the applicant argued the matter based on factual matrix with respect to applicant No. 1. Accordingly, matter was heard keeping in view record or material placed before us with regard to applicant No. 1. Matter was heard for almost two sittings at length and applicants besides rejoinder, have also filed additional affidavit in the matter. After going through the material and giving our thoughtful consideration to the arguments, it is pertinent to note some admitted positions of the parties before adjudicating main issue in the matter.
10. It is an admitted position that due to large number of vacancies of Stenographers remaining unfilled though open examination conducted by Staff Selection Commission (SSC) for the year 2011 (Annex. A/3), a Reserve List of candidates, who did not qualify proficiency/skill test of Stenography within 7% & 10% mistakes for Stenographer Grade D (Stenographer Grade II in respondent-department) as per prescribed norms for Unreserved (UR) and Reserved category candidates respectively, was issued for filling up posts in CBI and CBDT. The 19 candidates appointed through such reserve list would require to furnish a written declaration to the effect that they will clear the skill test in Stenography conducted by SSC at 80 w.p.m. within probationary period, failing which their probationary period will not be clear. Applicants herein accepting such condition, appointed through SSC Open Examination, 2011 in the respondent-department. It is also an admitted position that SSC had conducted Skill/Proficiency Test of Stenography in respect of those candidates who had been selected under relaxed norms subject to the condition stipulated above, on 23.08.2014 and 27.10.2014. The applicant No. 1 and applicant No. 2 did not qualify in the same. Thereafter, SSC vide letter dated 03.07.2015 informed CBDT to conduct Proficiency Test of Stenography for such candidates selected under relaxed norms of proficiency in Stenography at CBDT's level. The applicant No. 1 and applicant No. 2 again appeared in such proficiency test conducted by their own department on 28.09.2015 but did not qualify. However, they qualified the said proficiency test on 25.05.2016.
11. Here, it is pertinent to note that a Stenographer Grade D, i.e. Stenographer Grade II in CBDT, after entering into the services of the respondents is entitled to take departmental examination called Ministerial Staff Examination and candidates remaining successful in such examination is entitled to take 20 another departmental examination for promotion to the post of Inspector. The applicants herein were allowed to appear in departmental examination for Ministerial Staff - 2014 provisionally subject to passing of Proficiency Test in Stenography as they were appointed to the post of Stenographer Grade II under relaxed norms as is evident from the record. However, result of the applicant No. 1 has been cancelled by the respondents invoking the condition that they could not qualify the Stenography proficiency test before declaration of the results for Ministerial Staff Examination - 2014. As such, the applicant No. 1 would not have appeared for departmental examination for Income Tax Inspector - 2015 but in view of interim direction issued by this Tribunal on 27.05.2015, the applicants were allowed to take the examination. However, at the time of issuing interim direction, this Tribunal has categorically observed that such direction will not by itself create any right in their favour either for the Ministerial Staff Examination or for the ITI Examination - 2015.
12. The applicant No. 1 has put forth the case that he appeared in the subsequent open examination (year 2012/2014) conducted by the SSC for Stenographer Grade D wherein he has been able to get proficiency in Stenography as desired by the Staff Selection Commission, i.e. upto 7% for UR and upto 10% for reserved category candidates, therefore, applicant should have 21 been deemed by the respondents to be qualified in proficiency test as per the conditions attached at the time of his appointment since the SSC selects all the candidates at such proficiency level in Stenography. Respondents, on the other hand, raised the contention that the provisional permission to appear in the departmental examination for Ministerial Staff - 2014 has been granted by the respondents with respect to the appointment of the applicant under relaxed norms in the year 2012 from the Reserve List of SSC for the examination year 2011 in the respondent-department. Therefore, the applicants now cannot seek benefit of his passing of open examination conducted by SSC subsequently as that would only entitle the applicants for placement and selection afresh in order of their merit in the said open examination and their appointment thereof would only be a fresh appointment in that selection process. The applicants did not opt to be selected under the said open examination rather they preferred to be appointed through earlier selection conducted by the SSC which resulted in they being appointed under relaxed proficiency norms subject to fulfilment of the same at a later date. We have given our thoughtful consideration to these contentions raised by either side. It is the basis of the claim of the applicants herein. In this regard, we observe that though the applicant had attained the required proficiency in Stenography in the open examination 22 conducted by the SSC in subsequent examination but the same would disentitle them to get the benefit of their earlier selection by relaxing the norms. On the basis of the selection under relaxed norms subject to the condition of attaining desired proficiency level in Stenography, the applicants could appear provisionally in the departmental Ministerial Staff Examination - 2014. Thus, in our view, the applicants cannot now claim benefits of both the selection at the same time. Hence, we find force in the contention raised by the respondents.
13. Applicants have raised the ground that similarly situated persons have been allowed to appear in such departmental examinations. Contentions regarding seven persons have been raised in the Original Application. However, at the time of final hearing, learned counsel for the applicant raised specific contentions regarding one Shri Gopi Kishan Upadhyay and Shri Bharat Agarwal. During course of hearing, learned counsel for the applicants also provided us a comparative chart. On perusal of the said chart, we find that Shri Gopi Kishan Upadhyay and Bharat Agarwal, who were appointed under relaxed norms as were the applicants, qualified the special Skill/Proficiency Test of Stenography on 11.05.2015 whereas the applicant No. 1 passed the same on 02.06.2016.
23
14. As such, as per Annexure A/12 dated 11.05.2015, it is clear that Gopi Kishan as well as Bharat Agarwal who were appointed on relaxed standards, appeared in the Proficiency/Skill Test conducted by SSC, New Delhi on 27.10.2014 and they were declared to have qualified the Proficiency/Skill Test. Whereas the applicant qualified in the next proficiency/skill test conducted by the respondents on 25.05.2016and date of his declaration of such proficiency/skill test is 02.06.2016 (Annex. A/6).
15. Applicants having appeared in the skill test but failed to qualify the skill test norms within the time period specified by the respondents, as they were provisionally allowed to appear in the Ministerial Examination - 2014 subject to clearing proficiency/skill test in Stenography, cannot now claim benefit other way around. The applicants' appointment was under
relaxed norms and therefore, their case cannot be compared to a Stenographer selected under normal norms and remaining under probation as per rules. The applicants' themselves have given undertaking that they would clear the skill test norms within the prescribed standards during their probationary period and only then their probationary period will be cleared. Had the respondents not allowed the applicants to appear in departmental examination before qualifying minimum proficiency in Stenography for securing/confirming their 24 appointment in the respondent-department, the applicants would have got no right to appear in the departmental examination. Be as it may, respondents at the same time provided them opportunity for career progression and confirmation of their appointment/job which was temporary due to relaxed standard, but the applicant having failed to grab the opportunity by not qualifying proficiency/skill test of Stenography within time despite opportunities provided by the respondents, cannot now seek direction from this Tribunal.
16. We have extensively gone through the material available on record and pondered over the issue and thereafter reached to the conclusion that provisionally allowing the applicants either by the respondents or by this Tribunal would not create any right in favour of the applicants. Respondents have provided them opportunity for their career progression but unfortunately, applicants failed to grab the same. Hence, applicants are not justified in assailing the validity or seeking modification in the decision taken by the respondents by way of issuing orders 30.12.2014 (Annex. A/1) & 19.05.2014 (Annex. A/2). We are thus not inclined to interfere with the impugned orders issued by the respondents and subsequent decisions taken by them as the same are justified.
25
17. Also, as per the Hon'ble Apex Court judgment in case of D. Saroja Kumari Vs R. Helen Thilakom & Ors, reported in 2017 (6) SLR 496 (SC), it is clear that the petitioner having gone through the selection process, cannot challenge the same and submit that interview is unfair after being successful and not finding himself within the zone of consideration.
18. In view of discussions hereinabove made, OA is dismissed with no order as to costs.
[Archana Nigam] [Hina P. Shah] Administrative Member Judicial Member Ss/-