Central Administrative Tribunal - Delhi
Raman vs Employees State Insurance Corporation ... on 18 March, 2011
Central Administrative Tribunal Principal Bench OA No.1097/2011 MA No.0776/2011 New Delhi this the 18th day of March, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mr. Shailendra Pandey, Member (A) 1. Raman, s/o Shri Satya Narayan Kaushik 2. Anil Rathi, S/o Sh. Mamraj Rathi 3. Ashish, S/o Shri Ram Singh 4. Ashok Kumar, s/o Shri Raj Pal Singh 5. Devender Rana, S/o Shri Ram Chander Rana 6. Manjeet Bhardwaj, S/o Shri Jai Narayan -Applicants (By Advocate Shri Avadh Bihari Kaushik) -Versus- 1. Employees State Insurance Corporation through The Chairman, Panchdeep Bhawan, C.I.G. Road, New Delhi-110 002. 2. The Director (Medical) Delhi, ESI Scheme, ESI Dispensary, Tilak Vihar Complex, Near Tilak Vihar Police Chowki, New Delhi-110 018. -Respondents (By Advocate Shri Murari Kumar) O R D E R (ORAL)
Honble Mr. M.L. Chauhan:
The applicants have filed this OA thereby praying for the following reliefs:
(i) The Honble Tribunal may graciously be pleased to pass an order quashing and setting aside the impugned Result cum Interview notice dated 28.02.2011 and directing the respondents to adopt and follow the procedure laid down by them vide their own communication dated 10.01.2011 and make the appointments on the post of Nursing Orderly purely on the basis of marks obtained by the candidates in written examination only which was conducted on 30.01.2011 Or/alternatively
(ii) The Honble Tribunal may graciously be pleased to pass an order directing the respondents to disclose the marks obtained by the candidates in written examination and interview and thereafter, select the candidates adopting a transparent method by drawing a merit list computing and calculating the marks obtained by the candidates both in written examination and as well as interviews;
(iii) The Honble Tribunal may graciously be pleased to direct the respondents that while making selection on the basis of merit list prepared in the manner as prayed for in prayer No. (ii) above, the weightage to the marks obtained by the candidates in written examination and interview should not be given other than the ratio of 85:15; as repeatedly held by the Honble Supreme Court.
(iv) Any other relief, order or directions which this Honble Tribunal considers just and fit in the circumstances of the case may also be passed in the interest of justice.
2. Briefly stated the facts of the case are that the respondents published an advertisement dated 28.10.2010 inviting applications (Annexure A-2, page 27 of the paper-book) for various posts lying vacant in ESI Scheme, Directorate (Medial) Delhi from Group C and D staff including 157 vacancies of Nursing Orderly, which is a Group D post to be filled from various categories. The applicants being eligible also submitted their applications for Nursing Orderly, a Group D post pursuant to the aforesaid advertisement. It is the case of the applicants that written examination was scheduled to be conducted on 30.1.2011. The further case projected by the applicants is that since various candidates, including applicants were aggrieved with the decision of the respondents to select the candidates only on the basis of interview the matter was taken up with the Director General of ESIC who issued a letter dated 10.1.2011 to all the concerned authorities, including the present respondents thereby laid down the procedure for appointing Nursing Orderly/Para Medical staff in ESI model hospitals, according to which appointment to the post of Nursing Orderly would be on the basis of the written test. It is further pleaded that pursuant to the written examination hled on 30.1.2011 applicants qualified the written examination and the result of the same was declared vide letter dated 28.2.2011 (Annexure A-1, pages 22-26 of the paper-book) thereby provisionally declaring the applicants successful for interview. The grievance of the applicants is that they were only interviewed contrary to the directions given by their department that selection would be on the basis of the written test and interview. In other words, the Department has proceeded to select the candidates only on the basis of interview without giving weightage to the marks obtained by the candidates in the written test. It is on the basis of these facts the applicants have filed this OA for the aforesaid reliefs.
3. We have heard the learned counsel of applicants on admission. We are of the view that the applicants have not made out any case for the grant of reliefs for the reasons stated hereinbelow. In order to decide the point in controversy it will be relevant to reproduce para-4 and 4(a) of the advertisement dated 28.10.2010, pursuant to which applicants submitted their applications for the post of Nursing Orderly, which thus read:
4. Mode of Selection: Selection of the candidate shall be done on the basis of interview only. However, wherever necessary, due to large number of applications, a Written Screening Test (Objective Type) will be held to shortlist the candidates for the interview. Written screening test/interview shall be held at Delhi.
4 (a) Written Screening Test (for shortlisting) (Objective Type) will be conducted on the basis of subject matter and General Awareness etc. (emphasis given)
4. Thus, from the portion, as quoted above, it is evident that the selection of the candidate was to be held on the basis of interview only and written test was to be held only to short-listing the candidates for interview. From the material placed on record and more particularly from the result of screening test held on 30.1.2011 result of which was declared on 28.2.2011 (Annexure A-1 pages 22-26 of the paper-book) it is also evident that the screening test was held only for the purpose of short-listing the candidates for the purpose of interview and the selection was not required to be made on the basis of the written test and interview, as contended by the applicants based on letter dated 10.1.2011 (Annexure A-4). At this stage it will be relevant to reproduce the result of screening test dated 28.2.2011, which thus reads:
On the basis of Screening Test held on 30/-1/2011 for the post of NURSING-ORDERLY the following candidates have been provisionally declared successful for interview. The date of interview is scheduled on 11,12,14,15,16,17,18,21,23,24,25,26&28th March, 2011. The interviews letters are being dispatched, if any of the following candidate does not receive his/her interview letter before the interview date, he/she may contact this office during the office working hours with their identity proof & one photographs for issuing duplicate interview letter. (emphasis given)
5. It may be stated here that although no notice of this OA was issued by this Tribunal when the matter was listed for admission today, however, Shri Murari Kumar, learned counsel has put in appearance on behalf of the respondents and contended that the letter dated 10.1.2011 on which reliance has been placed by the applicants in this OA prescribing procedure for the post of Nursing Orderly/Para Medical staff on the basis of written test + interview for appointment for (80 marks for test + 20 marks for interview) is not applicable to the selection for which the advertisement was issued on 28.10.2010 but the same would relate to the selection/appointments to be made in future. Be that as it may, mode of selection to the post of Nursing Orderly as mentioned in the advertisement, relevant portion of which has been reproduced in the earlier part of the judgment was only on the basis of interview. The applicants with eyes open submitted their applications without any demur or protest. Further para-4 of the advertisement makes it specifically clear that the written test will be held solely for the purpose of screening a candidate. The fact that written test was conducted for the purpose of screening only is also evident from the result, which was declared by the respondents in respect of the category of applicants vide letter dated 28.2.2011, relevant portion of which has been reproduced above. Thus the contention raised by the applicants that selection should have been made on the basis of written test as well as interview in terms of subsequent letter dated 10.1.2011 is wholly misconceived. The Apex Court has repeatedly held that the selection cannot be changed midstream and the selection should be made inconformity with the procedure prescribed in the advertisement. At this stage, we wish to refer the decision of the Apex Court in the case of Mohd. Sohrab Khan v. Aligarh Muslim University & Ors., JT 2009 (2) SC 666. That was a case where the post of Lecturer in Chemistry was advertised. The persons possessing the Masters degree in Chemistry submitted their applications. However, the selection committee selected a candidate having a 1st class Masters degree in Industrial Chemistry and not the person possessing 1st class Masters degree in Chemistry. The High Court allowed the Writ Petition holding that Chemistry and Industrial Chemistry are two different subjects, hence persons who did not possess the requisite qualification could not have been selected. The Apex Court while approving the decision of the High Court held that the selection committee during the stage of selection, which is a midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Masters Degree Holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard. The Apex Court has relied upon an earlier decision rendered in the case of Secy., A.P. Public Service Commission v. B. Swapna, JT 2005 (3) SC 468. At this stage it will be useful to quota para-22 of the judgment, which reads thus:
22. In Secy., A.P. Public Service Commission v. B. Swapna, [(2005) 4 SCC 154] at para 14 it was held by this Court that norms of selection cannot be altered after commencement of selection process and the rules regarding qualification for appointment, if amended, during continuation of the process of selection do not affect the same. Further at para 15 it was held that the power to relax the eligibility condition, if any, to the selection must be clearly spelt out and cannot be otherwise exercised. The said observations are extracted herein below:
"14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka (1990) 1 SCC 411 and Gopal Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544.)
15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141 this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised."
In Krushna Chandra Sahu (Dr) v. State of Orissa, [(1995) 6 SCC 1], at para 34 it was held by this Court the Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Krushna Chandra Sahu reference was made to the decision in P. K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141], wherein at para 44 it was observed:
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."
6. The ratio, as laid down by the Apex Court, is squarely applicable to the facts and circumstances of the case. Thus we are of the view that the selection is to be made inconformity with the advertisement and the letter issued by the Headquarters office dated 10.1.2011 after the advertisement (Annexure A-4) could not have been made basis for selecting the candidates pursuant to the advertisement dated 28.10.2010, although learned counsel for the respondents has stated that such procedure has been formulated for making future appointments. To the similar effect the decision of the Apex Court in the case of Hemani Malhotra v. High Court of Delhi, (2008) (2) SCC (L&S) 203 whereby the Apex Court has held that the change of rules during the selection process is not permissible.
7. The matter can also be looked from another angle. As already stated above the applicants applied for the post of Nursing Orderly pursuant to the advertisement with eyes open where the mode of selection was interview only. Once the applicants have not been selected, it is not permissible for them to make a challenge to the selection process.
8. At this stage, we wish to refer to the decision of the Apex Court in Dhananjay Malik and Others v. State of Uttranchal and others, (2008) 1 SCC (L&S) 1005 wherein the Apex Court held that after participating in the selection process unsuccessful candidates are estopped from challenging the selection criteria. In the instant case, if the applicants were aggrieved by the selection criteria as adopted by the respondents and as mentioned in the advertisement it was open for them to challenge the same. Having not done so, they cannot be permitted to make a challenge to the same at this belated stage when they have been declared unsuccessful. It may be stated that the selection is made to the lowest rung of the cadre, i.e., Nursing Orderly, which is a Group D category. As such, if the appropriate authority has thought it proper to select the candidates on the basis of the interview, it cannot be held that such criteria is adopted by the respondents is bad, more particularly when no challenge has been made regarding validity of the criteria, as adopted by the respondents for selecting Nursing Orderly. Thus, in the absence of any challenge to the criteria so adopted by the respondents it is not legally permissible to examine the validity of such criteria.
9. We may fail in our duty in case the only judgment cited by the learned counsel for applicants is not noticed. Learned counsel for applicants has placed reliance upon the judgment rendered by this Tribunal in TA-39/2010 Rohtas Dabas & Ors. v. Union of India & Ors., decided on 26.5.2010 regarding selection of Nursing Orderly pursuant to the notification dated 22.10.2007. As can be seen from para-2 of the judgement, the notification stated that the post was to be filled in by written test or interview or both. The respondents conducted the examination on 30.01.2009. However, it was in that context that this Tribunal held that selection be made on the basis of marks obtained both in written test as well as viva voce should be finalized. The judgment rendered by this Tribunal has also been affirmed by the High Court. We fail to understand how the applicants can get any assistance from this judgment, as the criteria of selection, as adopted in the notification dated 2007 is entirely different than the criteria prescribed for selection of Nursing Orderly in the present case.
10. In view of the foregoing reasons we do not find any merit in this OA, which is accordingly dismissed at the admission stage itself, without any order as to costs.
(Shailendra Pandey) (M.L. Chauhan) Member (A) Member (J) San.