Andhra HC (Pre-Telangana)
K.Santosh Kumar vs Govt. Of India, Rep. By Its Secretary, ... on 22 December, 2014
Author: R.Kantha Rao
Bench: R.Kantha Rao
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.13197 of 2014
22-12-2014
K.Santosh Kumar Petitioner
Govt. of India, Rep. by its Secretary, Ministry of Defence, New Delhi; and
4 others Respondents
Counsel for the Petitioner: Sri P.Ravi Shanker
Counsel for Respondent No.1: Sri B.Narayana Reddy,
Asst. Solicitor General
Counsel for Respondents 2 to 4: Ms. V.Uma Devi,
representing
Sri K.Srinivasa Murthy
Counsel for Respondent No.5: None appeared.
<Gist:
>Head Note:
? Cases referred:
1. (2008) 3 SCC 512
2. (2014) 5 SCJ 498
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.13197 of 2014
Date: 22-12-2014
Order:
Heard Sri P.Ravi Shanker, learned counsel
appearing for the petitioner and Ms.V.Uma Devi,
representing Sri K.Srinivasa Murthy, learned counsel
appearing for the respondents 2 to 4. None appeared for
the 5th respondent.
2. In response to the advertisement issued by the
2nd respondent-Bharath Dynamics Limited (BDL),
Hyderabad on 09-12-2013, the petitioner applied for the
post of Management Trainee (Finance). The requisite
qualifications for the post are a pass in final examination
of Chartered Accountant or ICAI or a Post Graduate
Degree in MBA (Finance) with minimum aggregate marks
of 55% for SC and ST candidates. The post is reserved
for ST category and the petitioner belongs to Lambada
community, which is a Scheduled Tribe. The petitioner
submitted application online and he was issued admit
card. A written test was conducted on 18-01-2014
online. The results of the written test were published on
23-01-2014 and the cut off mark for the ST candidates
for the purpose of selection was stated to be 85. As per
online information, the petitioner secured 102 marks in
the written examination conducted online out of
150 marks and he was hoping to get selection as he
secured the highest marks in the written examination.
He was called for interview on 08-02-2014 and attended
the interview. He fared well in the interview, which was
conducted by a 5-member interview board.
The petitioner was hoping that as he secured 102 marks
in the written examination even if he gets less marks in
the interview he was sure to get appointment.
He submits that to his utter surprise when he saw the
list of selected candidates on the website of the
2nd respondent-BDL, he could not find his name and that
the 5th respondent was selected in ST category for the
post of Management Trainee (Finance). When the
petitioner enquired the 2nd respondent-BDL, he came to
know that the 5th respondent was selected under
ST category though he got far less marks than the
petitioner. Thereafter, the petitioner applied for the
entire information in respect of the marks obtained by
him and also in respect of the other candidates including
the selected candidate i.e. the 5th respondent (Puvva
Chandrakanth). The 2nd respondent-BDL furnished the
information to the petitioner which shocked him as the
person who got far less marks in the written test was
awarded higher marks in the interview and was shown as
selected. The details are given as below:
Sl.
No.
Name & call
Lr. No. of the
candidate
Written
Test
Marks
(150)
Written
Test
Marks
(85)
Interview
Marks
(15)
Total
Marks
(100)
Remarks
A
B
C
D
E
F
G
1.
Shri Santosh
Kumar
100371
102
57.80
6.00
63.80
FAILED
2.
Shri Puvva
Chandrakanth
102459
89
50.43
13.00
63.43
SELECTED
Subsequently, the petitioner obtained information
under the Right to Information Act (the RTI Act, for short)
and came to know that he failed in the interview since he
could not get 50% of the minimum marks allotted for the
interview. The total marks allotted for interview are
15 and according to the respondents 2 to 4, one should
get minimum of 7.50 marks (i.e. 50%) for qualifying for
selection of the post applied for.
3. The petitioner submits that it is mentioned in the
advertisement that one should get minimum of
60% marks in respect of OCs, 50% marks in respect of
SCs and STs in the written test to qualify themselves for
further selection. But, nowhere it is mentioned that one
should get more than 50% marks in the interview.
It is further submitted by him that no such rule exists in
respect of the recruitment procedure in any organisation
and for the first time a novel method was introduced by
the respondents-organisation only to see that candidates
of their choice would be selected by depriving the fair
chances of meritorious candidates who secured higher
marks in the written test. Nextly, it is submitted that the
said procedure is unknown to law and in usual parlance
even a candidate gets far less marks in the interview if he
secured good marks in the written test, the aggregate of
both has to be taken into consideration and the
candidates who secured higher percentage of marks will
be automatically selected without there being any
condition that one should secure certain minimum
marks in the interview.
4. It is submitted by the petitioner that the aforesaid
method adopted by the respondents 2 to 4 is against the
provisions of the Constitution of India, against the
principles of natural justice and violative of Articles 14,
16 and 19 of the Constitution of India and known
principles of recruitment procedure and the above action
in rejecting the candidature of the petitioner is arbitrary
and illegal. The interview was only a formal one. Only
some general questions were put in the interview relating
to the family background, educational qualifications and
interest in the subjects taken. Therefore, according to
the petitioner, only to eliminate the prospective and
meritorious candidates, a novel method was adopted by
awarding below 50% marks out of 15 marks in the
interview obviously to reject the meritorious candidates
and to select the candidates of the choice of the
respondents. Under these circumstances, the petitioner
filed the present writ petition seeking a Writ of
mandamus declaring the action of the respondents 1 to 4
in selecting the 5th respondent to the post of Management
Trainee (Finance) under ST category who secured
63.43 marks which are far less than the marks secured
by the petitioner i.e. 63.80 is totally arbitrary, illegal and
violative of Articles 14, 16 and 19 of the Constitution of
India and consequently to set aside the selection of the
5th respondent and to direct the appointment of the
petitioner by passing appropriate orders.
5. The respondents 2 to 4 filed a Counter Affidavit
contending, inter alia, as follows:
The computer based online test comprised of
150 Multiple Choice Questions (MCQs), out of which
100 MCQs were based on Subject/Discipline Knowledge
and 50 MCQs were based on General Aptitude.
A category wise merit list was prepared based on the
marks secured by the candidates in the online test.
In order to limit the candidates in ratio of 1:7, based on
the merit list, cut-off mark was finalised for each category
separately to short list the candidates for interview.
The list of candidates short listed for interview along with
the cut-off mark for each category was hosted on the
respondents website on 23-01-2014. The petitioner
secured 102 marks out of 150 marks and the cut-off
mark for ST category candidates was 85 marks.
Total number of 8 candidates who secured more than
85 marks were called for interview against one
ST vacancy of Management Trainee (Finance).
The petitioner secured the highest marks among the
7 short listed candidates in the concerned category.
6. The interview for the post concerned was
conducted on 08-02-2014. Out of 8 candidates called for
in the ST category, 6 candidates attended the interview
including the petitioner. The Interview Committee
consisted of 5 members including one member as
representative for SC/ST. Based on the performance of
the candidates in the written test and interview, the
Board submitted its recommendations. The list of
candidates selected for the post of Management Trainee
(Finance) was hosted on the website of the respondents
on 14-02-2014. Mr. Puvva Chandrakanth
(5th respondent) got selected as Management Trainee
(Finance) in the ST category.
7. The contention of the respondents is that as per
para 2.13.3 (B) of Recruitment Rules of the BDL, the
selection process of Management Trainees comprises of
written test (online test) and interview. The criteria and
weightage in the selection process is as follows:
i) Written Test - 85 Marks
ii) Interview - 15 Marks
As per para 2.13.3 (C) of Recruitment Rules of the
BDL, minimum qualifying marks in each criterion for the
ST category candidate is 50% i.e. the candidate has to
secure minimum 7.5 marks in the interview. The marks
obtained in the written test (i.e. out of 150 marks) is
converted in accordance with the weightage of the written
test criterion i.e. 85 marks. The petitioner has secured
102 marks in the online test, which is converted into
85 weightage i.e. 57.80 marks. He has secured 6 marks
in the interview. Hence, the total mark secured in the
selection process out of 100 marks is 63.80. Whereas,
the selected candidate Mr. Puvva Chandrakanth
(5th respondent) secured 89 marks in the online test
whose converted weightage is 50.43 and secured
13 marks in the interview. The total marks of
Mr. Chandrakanth are 63.43. In view of the Extant rule
position, as the candidate has to secure 50% marks in
the interview to get selected and the petitioner has
secured only 6 marks out of 15 marks, he could not be
selected. In view of the aforesaid contentions, the
respondents 2 to 4 prayed to dismiss the writ petition.
8. The learned counsel for the petitioner submits
that the respondents 2 to 4 for the first time in the
counter disclosed the Recruitment Rules of BDL
prescribing minimum qualifying marks for the interview
but the same has not been mentioned in the Notification.
Thus, according to the learned counsel for the petitioner,
even if according to the respondents 2 to 4, the condition
of securing minimum marks is stated in the recruitment
Rules unless it is made known to the candidates,
rejection of the candidature at a later stage on the
premise that the candidate failed to secure the minimum
marks is arbitrary and illegal, which requires to be set
aside by this Court in the present writ petition.
9. On the other hand, the learned counsel appearing
for the respondents 2 to 4 would contend that all the
applicants have generated their application forms from
the website of the respondents which also contains the
Recruitment Rules and therefore, they cannot plead
ignorance of the minimum qualifying marks relating to
the interview.
10. Indisputably, the requirement of obtaining
minimum marks in the interview was not notified in the
advertisement made by the respondents 2 to 4.
The petitioner could be able to know the said fact only
when he obtained information from the respondents
under the RTI Act as to how he was not selected for the
post. Only at a later point of time, the petitioner was
made aware that he was not selected as he could not
secure minimum marks in the interview. Therefore, the
petitioner was not aware of the fact before appearing for
the interview that he has to secure minimum 50% of the
marks in the interview to become eligible for the post
which he applied for and appeared.
11. The only question which falls for consideration
in the present writ petition is that on account of
non-mentioning of the requirement of securing minimum
marks in the interview whether the selection of the
5th respondent is liable to be set aside and the petitioner
be appointed in his place ? The marks obtained in the
written test and the total marks obtained by the
petitioner (in the written test + interview) are higher than
the marks obtained by the 5th respondent. The only
difference is that the petitioner failed to secure the
minimum 7.5 (50%) marks in the interview, whereas the
5th respondent got 13 marks in the interview. Therefore,
the total marks obtained by the 5th respondent though
are lesser than the marks obtained by the petitioner, the
5th respondent was selected for the post.
12. The learned counsel appearing for the petitioner
relied on K.MANJUSREE v. STATE OF A.P. , in which
case the High Court of Andhra Pradesh for the selection
of District and Sessions Judges (Grade II) introduced
minimum marks for the interview after Notification.
The earlier recruitment never insisted upon the minimum
marks to be obtained in the interview. The Supreme
Court dealing with the situation took the view that the
introduction of requirement of minimum marks for
interview, after the entire selection process (consisting of
written examination and interview) was completed, would
amount to changing the rules of the game after the game
was played which is clearly impermissible.
13. The facts in K.MANJUSREE (1 supra) are not
exactly identical to the facts of the present case since in
the case before the Supreme Court, no rules have been
framed by the High Court prescribing the minimum
marks for the interview and the criterion of prescribing
minimum marks for the interview was introduced after
completing the written examination as well as the
interview. Whereas, in the instant case, the respondents
2 to 4 framed rules indicating the requirement of
obtaining minimum marks in the interview but they have
not mentioned the same in the advertisement
whereunder they invited applications from the
candidates.
14. Another judgment relied on by the learned
counsel appearing for the petitioner is BISHNU BISWAS
v. UNION OF INDIA , in which case interview was never
part of recruitment process and the Recruitment Rules
only provide for a written examination having
50 maximum marks. Successful candidates were called
for interview. Though such interview was not part of
recruitment process, interviews were conducted.
The Selection Committee allocated equal marks for the
interview and also for the written test i.e. 50% each.
15. Therefore, the facts of the case in BISHNU
BISWAS (2 supra) are also not identical to the facts of the
present case since the selection in the present case is
based on interview as well as written test.
16. However, the observations made by the Honble
Supreme Court while disposing of the case in BISHNU
BISWAS (2 supra) are crucial. The Supreme Court
observed as follows:
20. The manner in which marks have been
awarded in the interview to the candidates indicated
lack of transparency. The candidate who secured
47 marks out of 50 in the written test had been given
only 20 marks in the interview while large number of
candidates got equal marks in the interview as in the
written examination. Candidate who secured
34 marks in the written examination was given
45 marks in the interview. Similarly, another
candidate who secured 36 marks in the written
examination was awarded 45 marks in the interview.
Ultimately, the Supreme Court held that if the whole
selection is scrapped, most of the candidates would be
ineligible at least in respect of age as the advertisement
was issued more than six years ago. Therefore, the
Supreme Court did not interfere with the direction of the
High Court to continue with the selection process from
the point it stood vitiated stating that it does not require
any interference.
17. No doubt, it is within the competence of the
respondents to prescribe minimum marks for the
interview, the Appointing Authority can always prescribe
the rules relating to recruitment and such rules cannot
be questioned so long as they are not arbitrary, illegal
and unreasonable. However, this Court cannot refrain
from taking into account the manner in which the marks
were awarded to the candidates in the interview.
There was only one post notified for the Management
Trainee (Finance) under ST category. 7 candidates who
secured the qualifying marks in the written test were
called for interview. The marks allotted for written test
are 85 and the marks allotted for interview are 15.
Among all the candidates who appeared for the interview,
the 5th respondent only got 13 marks whereas all the
remaining candidates got less than 7.50 marks i.e. less
than the minimum marks prescribed for the interview for
the purpose of selection for the post. The manner in
which the marks were awarded to the candidates in the
interview clearly demonstrates that to enhance the
prospects of the 5th respondent, he was made the only
candidate who was awarded 13 marks and all the
remaining candidates were awarded less than the
minimum marks. In any event, this Court is of the view
that the petitioner or any other candidate who applied for
the post is under no obligation to know the method of
selection other than which was indicated in the
advertisement. Even if it is mentioned in the rules
relating to the organisation of the respondents pertaining
to the method of selection about the necessity of
obtaining minimum marks in the interview, unless it is
notified in the advertisement, the respondents cannot
disqualify a candidate who failed to secure minimum
marks in the interview though he got higher marks in the
written test. The manner in which the selection of the
5th respondent was made thus does not stand to the legal
scrutiny. The same is obviously arbitrary, discriminatory
and illegal.
18. Consequently, the selection of the
5th respondent for the post of Management Trainee
(Finance) is set aside and the respondents 1 to 4 are
directed to appoint the petitioner for the post of
Management Trainee (Finance) within a period of 2 (two)
months. The writ petition thus succeeds and is allowed,
without any order as to costs. The miscellaneous
petitions, if any, pending in this writ petition shall stand
closed.
___________________
R.KANTHA RAO, J.
22nd December, 2014.