Central Administrative Tribunal - Delhi
Pankaj Kumar S/O Sh. Kailash Prasad vs The Union Public Service Commission on 15 July, 2011
Central Administrative Tribunal Principal Bench OA 2466/2011 New Delhi, this the 15th day of July, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. R. C. Panda, Member (A) Pankaj Kumar s/o Sh. Kailash Prasad, Permanent R/o Chakhusain, Khusropur, Patna. Applicant (By Advocate: Mr. Anil Hooda) Versus 1. The Union Public Service Commission Through its Chairman, Dholpur House, Shahjahan Road, New Delhi. 2. Employees State Insurance Corporation Through the Director General, Punchdeep Bhawan, CIG Road, New Delhi, Old Secretariat, Delhi. Respondents. ORDER (ORAL) Justice V.K. Bali, Chairman:
Pankaj Kumar, applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking directions to be issued to the respondents to declare his result without adhering to the criteria of minimum qualifying marks for the interview and in that process if his name figures in the merit list of written test as well as interview, then to appoint him on the post of Deputy Director, ESIC.
2. The facts of the case as set out in the Original Application reveal that the applicant was appointed as Assistant Teacher in Government of Bihar in 1999 where he served upto 30.06.2004. On 01.07.2004, he was appointed on the post of Chemist in Public Health and Engineering Department, Government of Bihar. On 11.04.2005, he was appointed in Delhi Police on the post of Sub Inspector (Executive) and continued to serve Delhi Police on the said post.
3. Union Public Service Commission, the first respondent herein, vide advertisement No.50/2009 invited applications for 71 posts of Deputy Director in Employees State Insurance Corporation. Whereas 11 posts were reserved for SC, 6 for ST, 20 for OBC, the remaining posts were unreserved. UPSC conducted written test for the posts as mentioned above on 09.08.2009 wherein the applicant appeared. On 23.11.2009, the applicant was informed that he had qualified to be called for interview for the post of Deputy Director (Administration/Insurance/Training etc.). The exact date was, however, to be intimated to the applicant later. On 23.03.2010, the applicant was informed that his candidature has been cancelled due to lack of experience in a responsible capacity. The interviews for the posts were notified to be held on 15/16.04.2010. Aggrieved of cancellation of his candidature on the ground as mentioned above, applicant filed OA No.1250/2010 wherein, vide orders dated 19.04.2010, on the interim prayer sought for by the applicant, he was allowed to appear provisionally in the interview but the result of the applicant was ordered not to be declared without permission of the court. On 01.11.2010, the Tribunal required the respondents to intimate the result of the applicant as in its view the matter may require discussion on merits only if the applicant had succeeded. Surely, if the applicant had not succeeded, there would have been no need to return a finding as to whether he was eligible having worked earlier on a responsible post. The result of the applicant, which was brought in sealed cover and opened in the court, revealed that the applicant had secured only 42 marks out of 100 in the interview instead of 45 marks required for qualifying the same. That being so, the Original application was dismissed as it was felt that there would be no need for academic discussion as regards the applicants holding a responsible post when even if the said finding was to be returned in favour of the applicant, no relief could be granted to him.
4. The applicant challenged the order of the Tribunal in the High Court of Delhi. The Honble Division Bench dealing with the matter, on 26.05.2011 recorded the following order:-
CM No.7645/2011Allowed, subject to all just exceptions.
WP (C) 3660/2011 Questioning the correctness of the order dated 26th November, 2010 passed by the Central Administrative Tribunal, Principal Bench (for short the tribunal) in OA No. 1250/2010, the present writ petition has been preferred under Articles 226 and 227 of the Constitution of India.
Mr. Anil Hooda, learned counsel appearing for the petitioner, raised a singular contention that the competent authority could not have fixed a cut off mark in interview and total marks in the written examination and interview should have been considered. It is urged by him that the tribunal has not adverted to the same. Be it noted, this question was not raised before the tribunal.
In view of the aforesaid, we grant liberty to the petitioner to file a fresh Original Application raising this issue before the tribunal which shall be adjudicated by the tribunal on merits. The order passed in the OA No.1250/2010 shall not be an impediment for consideration of the contentions which will be put forth in the fresh Original Application.
With the aforesaid observations and liberty, the writ petition stands disposed of without any order as to costs.
5. Learned counsel for the applicant in support of present Original Application has raised two-fold submissions. It is first urged by him that the respondents have changed the rules and criteria for selection in midst of the examination and, therefore, cogent reasons exist for this Tribunal to interfere in the matter. The contention of the learned counsel for the applicant is that there was no prescription of minimum qualifying marks for the interview, and to secure 45 cut off marks in the interview has been prescribed during the process of selection.
6. Counsel for the applicant does not appear to be right in his submission as noted above. Perusal of the advertisement would reveal that there would be a written objective type test with multiple choices which would be followed by interview for selection of candidates for the posts. The method and syllabus for the test have been mentioned in the advertisement itself. As regards weightage of the recruitment test and interview, it has been mentioned that the same shall be decided by the Commission. There is no mention in the advertisement that the merit shall be determined by combination of marks obtained both in written test and interview. As to what weightage shall be given in the interview, it is clearly mentioned in the advertisement that the same shall be decided by the Commission. If after advertisement, the UPSC has prescribed minimum 45 marks to be obtained in the interview, it shall not be a change of recruitment rules in midst of the examination. If perhaps, it had been mentioned that the merit would be worked out in combination of the marks secured by candidates both in written test and interview and the minimum qualifying marks in the interview might have been prescribed thereafter and there was some change brought about, applicant may have had some case. Confronted with the position aforesaid, counsel for the applicant would contend that prescription of minimum qualifying marks in the interview would be illegal in an examination which consists of both written test and interview, and it is combination of marks which would determine the merit. We have pondered over the question raised by the learned counsel for the applicant as noted above, but find no merit therein. The post advertised by the respondents is that of Deputy Director in the Employees State Insurance Corporation. It may be the requirement of the post for the incumbent to have good personality, command over language and other such attributes which would be essential to man the concerned post. The minimum interview marks will always depend upon the post in question. To illustrate, we may mention that if the post may be of News Reader in Doordarshan it would essentially require minimum marks in the interview, as surely, it may need to have good personality, audition, command over language, oration, pronunciation, the way and the manner in which he may speak etc. For the post as mentioned above, one may obtain 100% marks in the examination but if the personality is such that may not suit the post in question, he cannot be appointed at all. Interview in number of posts may have to be given precedence over the written test and, therefore, prescribing minimum marks for interview, in our view, would not be per se illegal. As mentioned above, it would depend upon the post and the requirement of the employer to man such post. That apart, we are of the firm view that the applicant to make out a case, even if the arguments aforesaid are to be accepted, had to gather information which is possible in view of the right granted to the citizens in the country under Right to Information Act, as to how many marks he had obtained in the written examination. It is only if by combination of marks obtained in written examination and interview that he was to secure more marks than the last selected candidates, that he would have some grievance. Once this information could well be obtained by the applicant, this Tribunal will not go into the fishing enquiry to find out as to whether the applicant by combination of marks both in the written test and interview had obtained more marks than the last selected candidates in his category.
7. Finding no merit in this Original application, the same is dismissed.
(Dr. R.C. Panda) (V.K. Bali)
Member (A) Chairman
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