Central Administrative Tribunal - Delhi
New Delhi vs Bharat Sanchar Nigam Limited on 20 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.1490/2010 New Delhi, this the 20th day of May, 2010 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Naresh Singh S/o Sh. Udal Singh, R/o 17A/622, Vasundhara, Ghaziabad (U.P.). 2. Smt. Anju Pandey, W/o Sh. S.K. Pandey, R/o 1-105, Parsvnath Residency, Sec.-51, Noida (U.P.). 3. Arvind Singh S/o Late Sh. Rishi Muni Singh, R/o DET (UFC), KBN, New Delhi. 4. Vaibhav Goyal, S/o Sh. Ram Narayan Goyal, C/o Ram Photo Studio, R/o Circular Road, Hathras-204101, Uttar Pradesh. 5. Amit Kumar, S/o Sh. Vishnu Kumar Agrawal, R/o 3, Govind Park Colony, Surendra Nagar, Aligarh-202001, Uttar Pradesh. 6. Hari Babu Bharti, S/o Sh. Himmat Singh, R/o III/3, New BSNL Colony, Ganga Nagar, Meerut, U.P. -250001. 7. Sushil Kumar, S/o Sh. J.U. Prasad, R/o Tax Bhawan, Telephone Exchange, Delhi Road, Bijnore, Uttar Pradesh. Applicants By Advocate: Shri Amit Gupta. Versus 1. Bharat Sanchar Nigam Limited, Through its Chairman-cum-Managing Director, Bharat Sanchar Bhawan, Harish Chandra Mathur Lane, New Delhi-110001. 2. The Director-HRD, Bharat Sanchar Nigam Limited, Corporate Office, Bharat Sanchar Bhawan, Harish Chandra Mathur Lane, Janpath, New Delhi-01. Respondents ORDER
By Honble Mrs. Meera Chhibber, Member (J) By this O.A. applicants have challenged clause 4 of col.12 of the Recruitment Rules of SDE (T) 2002 framed by the BSNL on the ground that respondents are holding the Limited Departmental Competitive Examination (hereinafter referred to as LDCE) in an arbitrary manner in as much as some of the optional papers were subjective while others were objective. The candidates who took the subjects in which objective type questions were asked, scored better marks than those who attempted subjective type question papers.
2. The brief facts as submitted by the applicants are that respondents had issued syllabus for LDCE against 25% quota for promotion to SDE(T) grade. It provided two papers. Paper I comprised of advanced technical paper (general) objective in nature for all the candidates irrespective of the stream opted by them. In paper II, candidates had option to choose any one of the 7 subjects, viz. switching, transmission, GSM, WLL, Internet and broadband, computers, computer networks and application packages, external plant and access networks. However, nature of paper was not prescribed as to whether it would be subjective or objective.
3. The examination notice was issued on 09.02.2007 and LDCE was held on 15.07.2007. The result was declared on 08.07.2008 which shows that those who attempted subjective type questions had secured less marks than others. Only 1800 candidates were declared passed and more than 2000 posts remained vacant. Being aggrieved, they had filed Writ Petition which was transferred to the Tribunal and was numbered as T.A. 885/2009. It was dismissed as withdrawn on 19.10.2009 with liberty to challenge the Recruitment Rules and the methodology of selections and implead the affected parties (page 97). Respondents thereafter issued letter dated 20.10.2009 regarding LDCE for SDE (T) for the vacancy years 2006-2007. At this stage applicants filed M.A. No.2585/2009 seeking modification of order dated 19.10.2009 but that MA was dismissed on 19.2.2010 (page 118). Applicants then challenged order dated 19.10.2009 before the Honble High Court of Delhi by filing writ petition No.1787/2010, but the writ petition was dismissed on 16.03.2010 (page 119) with the following observations:-
The learned counsel for the petitioner has also very emphatically contended that filing a new petition will delay the adjudication of the pleas and contentions of the petitioners. This cannot be a ground to set aside the order passed by the Tribunal on the lawful representation made by a duly appointed counsel on behalf of petitioners. Since the liberty has been granted to the petitioners to file a fresh petition and if in the opinion of other counsel recruitment rules are not to be challenged nor any other parties are to be impleaded in the fresh petition, it will open to the petitioners to take such appropriate pleas and relief as may be deemed and fit and appropriate by them.
4. Applicants have now filed this OA seeking the following relief:-
(i) Declare Clause 4 of column 12 of the Recruitment Rules of SDE (T) 2002 as illegal and violative of the petitioners fundamental rights under Articles 14, 16, 19 and 21 of the Constitution of India.
(ii) Declare the actions of the respondents in conducting the examination of SDE (T) LDCE 2007 held on 15.7.2007 as illegal, arbitrary, discriminatory and violative of the petitioners fundamental rights under articles 14, 16, 19 and 21 of the Constitution of India.
(iii) Quash the examination paper of SDE (T) LDCE 2007 held by the respondents on 15.7.2007 or in the alternative direct the respondents to consider the petitioners for promotion to the post of SDE (T) only on the basis of Paper-I of the Examination held on 15.7.2007.
5. We have heard counsel for the applicants. It is submitted by the counsel for the applicants that the applicants have failed only by few marks in Paper-II even though they scored very high marks in Paper-I. If only respondents had taken objective type of question paper in their stream also, they would have passed the examination.
6. We have not been able to understand why applicants have challenged the column 12 clause 4 of the Schedule of the Recruitment Rules because it does not lay down the procedure of holding LDCE. It only lays down that 75% of Junior Telecom Officers (Telecom) with 3 years regular service would be eligible for promotion to the post of SDE (T) while 25% of posts shall be filled by way of LDCE from amongst Junior Telecom Officers (T) who have rendered not less than 3 years regular service in the grade on Ist July of the year of examination. It is further clarified in the note that syllabus and rules for conducting LDCE shall be such as the Board may prescribe from time to time.
7. It is admitted that syllabus for LDCE was already notified. Perusal of the syllabus annexed at page 31 shows that the candidates were already informed in advance the type of question that would be asked. It is relevant to note that lot of options were given so that candidates may prepare for the exam well in advance. The respondents thereafter issued letter dated 7.2.2007 informing all the offices that minimum pass marks prescribed for each paper would be 50% in respect of OC candidates and 45% for SC/ST candidate. It was further reiterated that syllabus has already been issued on 20.6.2006 meaning thereby that applicants were aware they have to prepare the subject which they choose as per the syllabus. Moreover, at the time of issuing Paper-II candidates were given option to select any one of the subjects viz. A, B, C, D, E, F or G. It was thus open to the candidate to opt for any subject of his choice. If he felt the other subject was more scoring, he could have opted for it but knowingly he chose the subject of his choice. If ultimately he scored less marks than those who opted for the other subject, the applicants cannot have any grievance. It is a matter of choice, e.g. in Maths one can get 100% marks which may not be possible in Social Studies or History. That is why option is given. Still if one person opts for History, he cannot question the candidate who had opted for Maths, scoring more than him.
8. Even otherwise, the law is well settled that if a candidate takes the exam knowing the methodology and is not selected, he cannot later challenge the methodology adopted. In the General Manager, South Central Railway, Secunderabad Vs. A.V.R. Siddhanti reported in 1997 (4) SCC 348 the Honble Supreme Court held that one, having appeared in the examination, cannot be allowed to later challenge the procedure of selection.
9. In Suneeta Aggarwal Vs. State of Haryana and Others reported in 2003 (3) AISLJ SC 30, Honble Supreme Court held as under:-
Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh to the said post in response to re-advertisement of the post without any kind of protest. Not only did she apply for the post, but also she appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice Chancellor declining to accord his approval and obtained an ad-interim order. In the writ petition she also did not disclose that she has applied for the post consequent upon second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed.
10. In Trivedi Himanshu Ghanshyambhai Vs Ahmedabad Municipal Corporation and Others 2007 (8) SCC 644 Honble Supreme Court observed as follows:-
Unsuccessful candidates Held on facts, could not challenge appellants appointment on the ground that he did not have requisite administrative experience.
11. In the instant case also the applicants were fully aware of the syllabus, they appeared in the exam and it is only after they failed that they are challenging the process of holding the exams. In these circumstances, the relief sought by the applicants that the examination held on 15.07.2007 for SDE(T) be quashed cannot be granted. Even the relief that they be promoted on the basis of Paper-I alone cannot be granted as that would amount to having two yardsticks in the same examination.
12. The O.A. is, accordingly, dismissed. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh