Central Administrative Tribunal - Delhi
Smt. Seema vs Ministry Of Labour on 30 July, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2822/2011
With
OA-2823/2011
OA-3619/2011
OA-3629/2011
OA-4602/2011
OA-449/2012
Order Reserved on: 24.07.2012.
Pronounced on : 30.07.2012.
Honble Sh. Shailendra Pandey, Member (A)
Honble Sh. A.K. Bhardwaj, Member (J)
OA-2822/2011
Smt. Seema,
W/o Sh. Om Prakash,
R/o B-657, Sector-1, Avantika,
Rohini, Delhi-110085. . Applicant
(through Sh. B.K. Srivastava, Advocate)
Versus
1. Ministry of Labour,
Rafi Marg, Shram Shakti Bhawan,
New Delhi-110001.
Through the Secretary.
2. Employees State Ensurance Corporation,
Rajendra Bhawna, Rajendra Place,
New Delhi-110008.
Through Joint Director Recruitment. . Respondents
(through Sh. M.K. Saran, Advocate)
OA-2823/2011
Mr. Rajat Kumar,
S/o Sh. Ranbir Singh,
R/o H.No. 185, VPO Kanjhawala,
Delhi-110081. . Applicant
(through Sh. B.S. Sharma, Advocate)
Versus
1. Ministry of Labour,
Rafi Marg, Shram Shakti Bhawan,
New Delhi-110001.
Through the Secretary.
2. Employees State Ensurance Corporation,
Rajendra Bhawna, Rajendra Place,
New Delhi-110008.
Through Joint Director Recruitment. . Respondents
(through Sh. M.K. Saran, Advocate)
OA-3619/2011
Sh. Parmod Vats,
S/o Sh. Shri Niwas,
R/o H.No. 240, Near Old Shiv
Mandir, VPO Katewara,
Delhi-39. . Applicant
(through Sh. Ajesh Luthra with Ms. Bimla Devi, Advocate)
Versus
Employees State Insurance Corporation
Through the Director General
Punchdeep Bhawan, CIG Road,
New Delhi. . Respondent
(through Sh. M.K. Saran, Advocate)
OA-3629/2011
Sh. Deepak,
S/o Sh. Ramphal,
R/o H.No. 675, Sadh Wali Gali,
Vill-Ghoga, Delhi-110039. . Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Labour and Empowerment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi.
2. The Dy. Commissioner & Zonal Director
Employees State Insurance Corporation,
Rajendra Bhawan, Rajendra Place,
New Delhi.
3. The Dy. Director,
Employees State Insurance Corporation,
Rajendra Bhawan, Rajendra Place,
New Delhi. . Respondents
(through Sh. M.K. Saran, Advocate)
OA-4602/2011
Sh. Mukesh Kumar,
S/o Sh. Ramesh Kumar,
R/o A-1/421, Nand Nagri,
Delhi-110032. . Applicant
(through Ms. B.S. Rana, Advocate)
Versus
1. Employees State Insruance Corporation,
Through its Director General,
ESIC Head Quarter,
2, CIG Marg,
New Delhi-110002.
2. The Director General,
Employees State Insurance Corporation,
ESIC Head Quarter,
2, CIG Marg,
New Delhi-110002.
3. The Regional Director,
Regional Office,
Employees State Insurance Corporation,
Rajendra Bhawan,
Rajendra Place,
New Delhi. . Respondents
(through Sh. M.K. Saran, Advocate)
OA-449/2012
Sh. Ashok Kumar,
S/o Sh. Arjun Prasad,
C/o Sh. P.K. Anil,
Accountant,
Account Section,
Patna GPO,
Patna-800001. . Applicant
(through Sh. Arvind Kumar Verma, Advocate)
Versus
1. The Chairman,
ESIC, Ministry of Labour,
Govt. of India,
Panchdeep Bhawan,
2, CIG Marg,
New Dlehi-110002.
2. The Joint Director (Recruitment)
ESIC, Govt. of India,
Head Office, Panchdeep Bhawan,
2, CIG Marg,
New Delhi-110002. . Respondents
(through Sh. M.K. Saran, Advocate)
O R D E R
Mr. A.K. Bhardwaj, Member (J) The subject matter of these six cases being the same, they are being disposed of by this common order.
2. Respondents issued Advertisement dated 05.11.2009 inviting applications for the posts of Lower Division Clerk (LDC). The candidates fulfilling the following conditions were eligible to apply for the post:-
(i) Age limit - between 18-27 years as on 15.12.2009.
(ii) Minimum eligibility - Higher Secondary or equivalent qualification from recognized Board with knowledge of Typing and Computer.
3. The candidates satisfying eligibility conditions could make online applications by 30.11.2009. However, after applying online, they were required to take a print out of System Generated applications on A-4 size paper and send the same by registered post to Regional Director, Regional Office, Employees State Insurance Corporation (ESIC) as per procedure mentioned in the Advertisement dated 05.11.2009 displayed on net.
4. The applicants participated in the written examination and Computer Skill Test (CST) held for selection to the aforementioned post of LDC in ESIC, but were unsuccessful. They have filed the present Original Applications questioning their non-inclusion in the select list for appointment to the said post. Various grounds raised by the applicants to support the relief prayed for by them separately are as under:-
(a) Non-selection of the applicants despite their getting higher marks than those who have been provisionally selected is violative of principle of natural justice, and is discriminatory. The result dated 03.05.2011 as well as the Corrigendum thereof displayed on the website of ESIC has not been prepared properly and is in disregard of material aspect of recruitment.
(b) The letter No. A36(14)/2006-exam dated 19.10.2006 could not be applied to the examination in question as the same was issued in connection with the 2006 examination only.
(c) At no point of time were the applicants allowed to know that they were required to secure minimum qualifying marks in different parts of CST separately.
(d) The minimum qualifying marks fixed in selection were 40% for general category and 35% for SC/ST/OBC/PH and Ex. Servicemen.
(e) The selection process/ Scheme of examination consisted of two parts; Part-I written test/examination and Part-II Skill Test in typing and knowledge of computer, including use of office suits and data base. Thus, the Part-II examination could not be segregated in sub parts for the purpose of prescribing minimum qualifying marks for any part thereof.
(f) In Faridabad Region the candidates who secured less marks than the applicant in OA-449/2011 in Part-II examination were selected.
(g) Legal notice and representations sent by the applicants have not been considered properly.
(h) Selection process has been altered in between i.e. after the initiation of the same.
(i) The criteria adopted in preparing the merit list/select list including fixation of six marks for formatting CST exam was never made known to applicants.
(j) When 50 marks were prescribed for CST exam, no separate marks were prescribed for the formatting part of it.
(k) Such candidates who did exceptionally well in the written and other tests have not been selected merely because they could not secure six marks in formatting part.
(l) The Selection is vitiated by mala fides. While the ESIC Selection Committee could prescribe minimum qualifying marks for formatting part of CST examination, this should have been fixed before commencement of the selection process.
5. The common pleas raised by respondents in the counter replies filed in all the afore-mentioned OAs separately are as under:-
(i) CST prescribed as part of selection process for the post of LDC was sub-divided into three parts and the candidates were required to secure atleast six marks in formatting part of CST.
(ii) The select list was prepared on the basis of performance of candidates both in the written examination as well as CST subject to the condition of securing minimum qualifying marks in formatting part of the CST as per the prevalent instructions issued in this regard on 19.10.2006.
(iii) The applicants failed to secure minimum qualifying marks in formatting part of CST, i.e. six marks for general category, five for OBCs/SC/PH/Ex-Servicemen and four for ST. Thus, could not be included in the select list.
(iv) In the Advertisement, it was clearly indicated that the candidates were required to have knowledge of computer, including use of office suites and data base.
(v) Applicants have not impleaded the successful candidates as respondents in the OAs, thus the same is not maintainable.
6. We have heard learned counsels appearing for parties and perused the record.
7. In view of the pleadings and material available on record, and rival contentions of the parties, the following propositions are brought out to be determined by us:-
(i) Whether this Tribunal can interfere with the selection process or the assessment of performance of candidates in such process such as written examination/CST?
(ii) Whether the procedure for conducting examination on working knowledge of computer including use of office suites and data base prescribed in letter dated 19.10.2006 can be said to be for the Part-II examination held on 30.10.2006 only and could not be applied to the examination in question?
(iii) Whether fixation of minimum qualifying marks for the formatting part of CST can be said to be new procedure introduced in the middle of selection process and whether the Selection Committee was competent to impose such a condition to assess suitability of candidates for their inclusion in the select list?
(iv) When the selection process was broadly divided in two parts i.e. written examination and CST, whether fixation of minimum qualifying marks for one part of CST amounts to change in the scheme of examination vitiating the entire selection process.
(v) When merit list Annexure A-3 to OA-3629/2011 was prepared on the basis of performance in written examination and CST and the qualifying marks for formatting part of CST was not displayed separately, whether the entire selection could be based on qualifying marks in such formatting disregarding the performance in the written exam and other part of CST.
(vi) Whether the separate qualifying marks for formatting part of examination have been fixed malafidely?
(vii) Whether O.A. is bad for non-joinder of necessary parties (successful candidates)?
8. It is the contention raised on behalf of applicants that despite being relatively more meritorious, they have not been included in the select list while the candidates who secured lesser marks in the written examination and CST have been included in select list for being appointed on the post in question i.e. LDC in ESIC. In other words, the applicants expect this Tribunal to scrutinize the relative merit of the candidates and prepare a select list. As has been held by the Honble Supreme Court in DALPAT ABASAHEB SOLUNKE, ETC. ETC Vs. DR. B. S. MAHAJAN ETC. ETC., AIR 1990 SC 434, Whether a candidate 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 and 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. Such view taken by the Honble Supreme Court was further reiterated in Durga Devi & Anr. Vs. State of H.P. & Ors., 1997(2) SC SLJ 209, relevant extract of that judgment reads as under:-
3. In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR 1990 SC 434, while dealing with somewhat an identical question, this Court opined (Para 9) :
"It is needless to emphasise 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 candidate 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. It is not disputed that in the present case the University had constituted the Committee in due com-pliance with the relevant status. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
4. In the instant case, as would be seen from the perusal of the impugned order, the selection of the appellants has been quashed by the Tribunal by itself scrutinising the comparative merits of the candidates and fitness for the post as if the Tribunal was sitting as an appellate authority over the Selection Committee. The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the Selection Committee. The observations of this Court in Dalpat Abasaheb Solunke's case (AIR 1990 SC 434 (supra) are squarely attracted to the facts of the present case. The order of the Tribunal under the circumstances cannot be sustained.
9. It is matter of record that the applicants participated in the selection process without any demur, and only after not being included in the select list; they have filed the present original applications. It is a settled principle of law that having participated in the selection process and not finding themselves to have been successful, the participating candidates cannot question the selection procedure. In Dhananjay Malik and Others Vs. State of Uttaranchal and Others, (2008)4 SCC 171, the Honble Supreme Court has held as under:-
7. It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal vs. State of J & K, (1995) 3 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
9.In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
10. In terms of the ESIC (LDC)/Adrema Operator/Telephone Operator/Computor) Recruitment Regulations, 2006 the essential qualification prescribed for the said post is Higher Secondary pass (Pass in 12th standard) or equivalent from a recognized Board; knowledge of typewriting with a speed of 30/25 words per minute in English/Hindi respectively; working knowledge of computers including use of Office Suites and databases. The essential qualification prescribed in Recruitment Regulations, 2006 was modified by ESIC ((LDC)/Adrema Operator/Telephone Operator/Computor) Recruitment Regulations, 2009 to the extent that the essential qualification prescribed in Column-8 of the Schedule Recruitment Regulations, 2006 was substituted with the following qualification:-
(i) Senior Secondary pass.
(ii) Knowledge of type writing with speed of 40/35 w.p.m. in English/Hindi respectively with knowledge of office suits and databases along with computer.
11. In consonance with such essential qualification prescribed in amended Regulation respondents subjected the applicants to selection process on 19.09.2010 and 26/27.02.2011 i.e. written examination and CST. The ESIC syllabus for recruitment to the post in question reads as under:-
Part I: Objective Test The written test is objective in nature with Multiple Choice Questions. The is a single paper conducted on a single day.
Maximum Marks: 200 Number of Questions: 200 Test Duration: upto 3 Hours Sections in the Test:
English Language General Intelligence & General Aptitude Numerical Aptitude and General Awareness Clerical Aptitude (Sometimes this section is removed) Part II: Skill Test Skill test is conducted to judge the knowledge of computer. Candidates are called for the skill test based on their performance in the Part I (written test).
12. On the basis of the written examination held on 19.09.2010 and CST on 26/27.10.2011 the respondents prepared provisional select list of 172 candidates including 85 unreserved, 49 OBC, 23 SC and 15 ST. It is seen that in advertisement dated 05.11.2009 (Annexure-A1 to OA-3629/2011) the essential qualification is indicated as Higher Secondary pass (12th pass) or equivalent qualification with knowledge of typing, computer, office suits and databases. In Column-9 of the Advertisement, it is mentioned that written examination consisting of objective type question of English language, General Intelligence & General Aptitude of 200 marks was to be held in January, 2010. In Column-10, it was further indicated that the candidates successful in Part-I of the examination were to be called to participate in Part-II of examination consisting of skill and knowledge in typing/computer. Undisputedly, the selection process for the post in question had taken place in accordance with the Scheme displayed on the website and indicated in the advertisement. As has been held by the Honble Supreme Court in aforementioned cases, it is not open for this Tribunal to assume the function of assessment of performance of candidates or to judge their suitability for a particular post. It is for the Selection Committee to judge the fitness of a candidate keeping in view the requirement and function of the post for which the selection is made.
13. ESIC had issued letter No. A-36(14)/2006-Exam dated 19.10.2006 providing therein that in order to qualify the test (CST) a candidate was required to secure at least six out of ten marks for formatting feature and speed of 40 w.p.m. in English or 35 w.p.m. in Hindi. Paras-9 & 10 of the said letter read as under:-
9. Out of the 10 marks for the formatting features a candidate should secure at least 6 marks to qualify.
10. In order to qualify the Test, the candidate should secure at least 6 out of 10 marks for Formatting features and speed of 40 words per minute in English or 35 words per minute in Hindi However, it is seen that the procedure prescribed in said letter is for conducting examination on working knowledge of computer including use of office suits and database for promotion of Group-D to LDCs. In OA-358/2012 (Rahul Sharma Vs. Ministry of Labour & Ors.) decided on 15.02.2012, a Division Bench of this Tribunal in which one of us (Honble Sh. Shailendra Pandey, Member (A)) was a Member, did not accept the plea of the applicant in the said O.A. regarding the splitting of marks in the CST in the examination held in the year 2009 on the basis of the said letter dated 19.10.2006 not being valid, and distinguished the judgment of Honble High Court in Subhash Baloda Vs. Lok Sabha Sectt., (WP(C) No. 4835/2011) decided on 01.09.2011. Para-6.1 of the judgment is as under:-
6.1. The Judgement of the High Court in Subhash Baloda (supra), relied upon by the applicants counsel, would not help the applicants case as the facts and circumstances are distinguishable and, in the present case, the respondents had clearly indicated in their advertisement that the test would consist of two parts and candidates had to secure minimum qualifying marks in each part. It was, therefore, for the candidates to have got any doubts in this regard clarified before the examination was held. Not having done so before participating in the selection, an unsuccessful candidate cannot later turn around and raise a grievance on this account. We are, therefore, of the firm view that the applicant has not made out any case for accord of the relief sought, and we also do not consider it necessary to issue notices in the matter to the respondents.
14. In view of the aforementioned view taken by the Co-ordinate Bench, we are of the considered view that the provisions of letter dated 19.10.2006 could be made applicable to subsequent examinations also. However, it is noted that the procedure contained in said letter is applicable to the examination on working knowledge of computer/use of office suites, database for promotion of Group-D to LDC. In the present OAs, the selection process in question did not involve promotion of Group-D employees but direct recruitment of candidates from the open market. Thus, whether the procedure of examination prescribed for promotion to LDC from Group-D post could be made applicable to CST held for direct recruitment is an issue that needs to be examined. In the absence of pleadings and sufficient material on record, it is not possible for us to pronounce on the issue authoritatively, thus we would expect the authority at the appropriate level to look into the same and take a view.
15. As is noted above in terms of the Recruitment Rules for the post in question only such candidates who possess knowledge of computer were eligible for the post in question. Even in the advertisement also, it was indicated that the eligible candidates were required to participate in Part-I examination consisting of objective type questions on various subjects and only such candidates who secured 120 marks in written examination could be called for CST examination to be held to assess the knowledge and skill of computer operation of the candidates. The entire Scheme of the examination, including the marks to be awarded for performance in various parts of skill test, cannot be expected to be published in the advertisement for the post. The Scheme of test on a particular subject as per selection procedure is left to the discretion of the Selection Committee or Experts on the subject. Normally, a candidate needs to perform to the level expected from him by the Expert or the Selection Committee to judge his suitability for the post in question. In its judgment to assess the performance of a candidate in a particular test, the Committee may give weightage to one or the other part of the test keeping in view the requirement of the job in question. Thus giving preference in selection to such candidates who perform at the required level in a particular part of the examination cannot be said to be an introduction of a new procedure in the middle of the selection. However, once for particular segment on a test, qualifying marks are to be fixed; in all fairness the candidates taking the examination should be apprised of the same. However, in the case of Rahul Sharma (supra), a Co-ordinate Bench of this Tribunal was of the opinion that in view of the provisions of letter dated 19.10.2006, it was for the candidates appearing in the examination to seek clarification of their doubts before participating in the examination. In view of the aforementioned, particularly in view of order dated 15.02.2012 passed in OA-358/2012, we are unable to take a view that the fixation of qualifying marks for a CST was a new procedure introduced in the middle of selection. Similarly, such fixation of marks would not amount to a change in the examination vitiating the selection process.
16. In most of the original applications, it is contended on behalf of applicants that once on the basis of their performance in written examination and CST they rank sufficiently high in merit position, merely for the reason that they could not secure six out of 10 marks in formatting; respondents could not ignore them in the select list. In other words, applicants have questioned the fixation of minimum qualifying marks in formatting part of CST when it was not so displayed in the Scheme of examination. The issue of allocation of marks came up for consideration before the Honble Supreme Court in Jasvinder Singh and others etc. Vs. State of J and K and Others, SC SLJ 2003(1) 140. In the said case, Honble Supreme Court viewed that allocation of higher marks for viva voce would not itself vitiate the selection unless same is done with an oblique intention and is so arbitrary that it is capable of being abused and misused in its exercise. Para-7 of the judgment reads as under:-
7. In Mahmood Alam Tariq and Ors. vs. State of Rajasthan and Ors. (AIR 1988 SC 1451) prescription of 33% as minimum qualifying marks of 60 out of total 180 marks set apart for viva voce examination does not by itself incur any constitutional infirmity. In Manjit Singh, UDC and Ors. v. Employees State Insurance Corporation and another (1990(2)SCC 367) this Court held that in the absence of any prescription of qualifying marks for the interview test the same 40% as applicable for written examination was reasonable. In Anzar Ahmed vs.. State of Bihar and others. (1994)ILLJ879SC this Court exhaustively reviewed the entire case law on the subject including the one in Ashok Kumar Yadav's case (supra) and upheld a selection method which involved allocation of 50% marks for academic performance and 50% marks for the interview. The very observations in Ashok Kumar Yadav's case (supra) would go to show that there cannot be any hard and fast rule of universal application for allocating the marks for viva voce viz-a-viz the marks for written examination and consequently the percentage indicated therein alone cannot be the touchstone in all cases. What ultimately required to be ensured is as to whether the allocation, as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. Judged from the above the Division Bench could not be held to have committed any error in sustaining the allocation of 25 marks (20%) for viva voce as against 100 marks for written examination for selection of candidates in the present case. The learned Single Judge, in our view has adopted a superficial exercise and proceeded on a misunderstanding of the real ratio of the decision in Ashok Kumar Yadav's case (supra). Further, the learned Single Judge appears to have applied the ultimate decision in the said case, to the case on hand drawing certain inferences on mere assumptions and surmises or some remote possibilities, without any proper or actual foundation or basis, therefore. Also in the case of Kuldip Singh Vs. State of H.P. & Ors., SC SLJ 1997(1) 626 the Honble Supreme Court reversed the order passed by the Tribunal quashing the selection by finding fault with the award of 21 marks in viva voce to the applicant therein without assigning any reasons. Para-4 of the judgment reads as under:-
4. In Dalpat Abasahe Solunke, etc. etc. v. Dr. B.S. Mahajan etc. etc. 1989 SCSLJ 403: (AIR 1990 SC 434), while dealing with some what identical question, this Court opined:
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. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant status. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction. Further in Manjeet Singh, UDC and Others Vs. Employees State Insurance Corporation and Another, (1990) 2 SCC 367 the Honble Supreme Court held that even when the advertisement did not prescribe any qualifying marks in the interview though such marks were prescribed in the written examination, the fixation of qualifying marks for interview during the selection process cannot be considered unreasonable. Para-6 of the judgment reads as under:-
6. So far as the remaining question that was debated before the Tribunal is concerned, we are of the view that the scheme intended for recruitment should be on the basis of an examination comprising of written test and interview. We agree with the submission of Shri Madhav Reddy that interview has its own place in the matter of the selection process and the choice of the candidate. Once this is recognised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided. In the absence of any prescription of qualifying marks for the interview test the same prescription of 40% as. applicable for the written examination seems to be reasonable. That has been the view expressed by one of us (Punchhi, J.) in a decision (Rajesh Sood v. Director-General, Employees State Insurance Corporation, decided on August 7, 1985) (Reported in (1985) 2 Serv LR 699 (Punj & Har)) to which our attention has been drawn. We approve of the view. Accordingly we modify the direction of the Administrative Tribunal and hold that in the oral examination the pass mark shall be 40% and 40% pass marks shall be insisted separately for the written as also the oral test for qualifying in the selection. Also in University of Cochin, Rep. by its Registrar, University of Cochin Vs. N.S. Kanjoonjamma & Ors., JT 1997(5) SC 379 Honble Supreme Court held that once a rule is adopted, non-indication of the same in the advertisement would not vitiate the selection. Para-4 of the judgment reads as under:-
4. It is not in dispute that Rules 14 to 17-A having specifically been adopted by the aforesaid Resolutions of the Syndicate and approved by the University, the power of the University to adopt the Rules has not been challenged. The aforesaid Resolutions do indicate that the University has properly made Rules 14 to 17-A applicable in relation to the recruitment of non-teaching staff to the University in certain posts, viz., Class I, Class III and Class IV. In furtherance thereof, the Vice-Chancellor was authorised by the Syndicate to advertise the posts and constitute a Selection Committee for recruitment of the candidates. In furtherance thereof, a Committee was constituted. Advertisement came to be made. It is seen that when the general rules have been made applicable there is no necessity by the University to make a special reservation rule for special recruitment. Therefore, the non-mention of the special recruitment in the Resolution is of little consequence. As seen, the Syndicate adopted the Rules in relation to the non-teaching staff of the University. As a consequence, the advertisement came to be made for special recruitment of the Scheduled Castes and Scheduled Tribes to the posts reserved for them. In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure. That apart, we have already held that procedure was correctly followed and, therefore, the omission to mention in the advertisement that it was a special recruitment is of no consequence. The further finding of the High Court relates to proviso 1 to Rule 4 which provides that when duly qualified candidates are available, the appointment shall be made to them. In other words, if duly qualified candidates are not available, then advertisement could be made for selection. That rule is applicable to the general recruitment. But with reference to the special recruitment of the candidates belonging to the Scheduled Castes and Schedule Tribes, Rules 14 to 17-A stand attracted. In addition, as seen earlier, the advertisement came to be made as early as on April 22, 1982 by which time the Resolution of the Syndicate was not adopted, the same having been adopted on March 7, 1982. So, Rule 4 is inapplicable to the special recruitment advertise on October 1, 1981. Therefore, the later Resolution applying Rule 4 has not retrospective effect. It is contended by the learned counsel for the respondent No. 1 that respondents 3 and 4 have left the jobs and so there is no need to disturb the appointment of the first respondent. As they are said to be on foreign service, they are entitled to join back on their posts. Thus considered, the High Court was clearly in error in allowing the writ petition.
17. Thus, even when the selection was to be based on performance in written examination and CST, fixation of minimum qualifying marks for Part-I of CST to the wisdom of the Selection Committee cannot be found fault with. Similarly, once a particular procedure is mentioned in the rules/instructions/law on the subject, non-mention of the same in the relevant advertisement may not vitiate the selection. However, it is not clear whether the selection procedure prescribed in letter dated 19.10.2006 for promotion from Group-D to LDC was adopted in direct recruitment process or not, although in some of the original applications malafides have been alleged against the respondents, but not even a tinge of material has been adduced to substantiate such contention. Moreover, no such person against whom malafides is alleged has been made a party. In the circumstances, the plea of malice raised by the applicants cannot be sustained.
18. It is seen that when the applicants have sought issuance of direction to respondents for their inclusion in the select list to the detriment of selected candidates they are not impleaded as party to OA even in representative capacity. In S. Jaffar Sahib Vs. Secretary, A.P.P.S.C. & Ors., JT 1996(9) SC 630 the Honble Supreme Court held that no Court or Tribunal can pass any order to the disadvantage of a person who is not a party before it. Para-4 of the judgment reads as under:-
4. The appellant appeared in person in this court and contended that appointments having been made contrary' to the Rules of Reservations, the said appointments are invalid and inoperative. The appellant's right to be appointed was illegally taken away and therefore this court should annual the appointment of the respondent's forthright and direct reconsideration of the appellant's appointment. We are unable to accept this contention at this belated stage. As has been stated earlier the appellant challenged the appointment of the respondents before the tribunal in the year 1987 and the tribunal did not interfere with the appointments made in the year 1981 and the said order became final not being challenged in any higher court. The appellant then filed second round of petition in the year 1990 which was rejected by the tribunal on the ground of laches and the application for review stood dismissed on the ground that there is no error of law apparent on the face of the order which can be reviewed by the tribunal. On the admitted facts that appointment of respondents to the post of Deputy Collector was made in the year 1981, an application before the tribunal in the year 1990 could not have been entertained after lapse of years. Then again there is an additional hurdle on the part of the appellant namely affected persons is not made parties to the proceedings. It is too well settled that without impleading a person as a party whose rights would be affected, no court/tribunal can pass any order against him. In the aforesaid premises we find no justification for our interference under Article 136 of the Constitution with the impugned order of the tribunal. The appeal is accordingly dismissed but in the circumstances there will be no order as to costs. Also in Arun Tewari and Ors. Vs. Zila Mansavi Shikshak Sangh & Ors., SC SLJ 1998(1) 58 Honble Supreme Court has held as under:-
All the original applications before the Tribunal who have challenged the provisions for recruitment of Assistant Teachers under the Operation Black Board Scheme did not possess the requisite qualifications for being selected under the said scheme as Assistant Teachers. Their names do not figure among the lists forwarded by the concerned District Employment Exchanges. Surprisingly, the pplications filed by all these persons and/or groups before the Tribunal did not make the selected/appointed candidates who were directly affected by the outcome of their applications, as party respondents. The Tribunal has passed the impugned order without making them parties or issuing notice to any of them. The entire exercise is seriously distorted because of this omission. They have now filed the present appeals after they have been granted leave to file the appeals. In the case of Prabodh Verma & Ors. Vs. State of Uttar Pradesh & Ors. (1984 [4] SCC 251 at page 273),this court observed that in the case before them there was a serious defect of non-joinder of necessary parties and the only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. The employees who were directly concerned were not made parties -- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. This Court observed that High Court ought not have decided a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity. These observations apply with equal force here. The same view has been reiterated by this Court in Ishwar Singh & Ors. Kuldip Singh & Ors. (1995 Supp [1] SCC 179), where the Court said that a writ petition challenging selection and appointments without impleading the selected candidates was not maintainable. (Vide also J. Jose Dhanapaul Vs. S. Thomas & Ors. (1996 [3] SCC 581, paragraph 4). On this ground alone the decision of the Tribunal is vitiated. However, even on merit we do not find that the judgment of the Tribunal can be sustained.
19. On the other hand, a fact which cannot be ignored in the present O.A. is that had the applicants been apprised about the qualifying marks in formatting part of CST, before the course of examination, they could have concentrated on it and made concerted efforts to secure such marks.
20. In view of the aforementioned findings and discussion, while we are not inclined to grant the relief prayed for in the original applications, we dispose of these OAs by directing the Secretary, Ministry of Labour to examine; (i) Whether the procedure laid down in letter dated 19.10.2006 for promotion from group-D to LDC could be made applicable in the process of direct recruitment to said post; (ii) Whether before participating in CST candidates were informed or were in a position to know that they were required to secure minimum qualifying marks in formatting part of CST; (iii) When the merit list has been prepared on the basis of performance in the written examination and CST; Whether there was any justification to reject such candidates who ranked higher in merit both in the written examination and CST, merely on the ground that they did not secure six marks in the formatting part of the CST. Such examination may be completed within two months from the date of receipt of a certified copy of this order and the outcome of the same may be implemented under intimation to applicants.
21. Subject to the above observations, the O.As are disposed of. No costs.
(A.K. Bhardwaj) (Shailendra Pandey)
Member (J) Member (A)
/vinita/