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2002 DIGILAW 278 (KER)

Jinu K. Paul v. Rubber Board

2002-04-10

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R. Hariharan Nair, J. The petitioners, two in number, are aggrieved that though they applied for selection and appointment as Field Attenders in the Rubber Board, Kottayam, and were sponsored by the Employment Exchange, they were not selected. 2. Sri. K. Gopalakrishna Kurup, who appeared for the petitioners, submitted that the entire selection process was stage-managed in such a way that the selection would go only to the Rubber Board's temporary workmen and their relatives and that it was done in an arbitrary manner. It is pointed out that though 18 candidates were sponsored by the Employment Exchange, none was selected from among them. The select list actually includes 3 persons from one and same family. The ranking system was conceived in such a manner that only the persons in whom the selectors were interested would get into the select list. This was done by prescribing that the total marks shall be 60 out of which 25 is go for experience; 20 for written test and 15 for interview. In fact, the Notification inviting applications had not mentioned anything about any written test or about the way in which marks would be allotted for interview, experience or written test. Yet another submission is that even though the written test was held on 18th and 19th December, 1996, the question paper used was one and the same which enabled the persons who appeared for the test on the second day to come ready for giving the answers fully knowing what the questions in the written test would be. It is therefore alleged that there has not been any bona fide selection process and that the selection made violates Articles 14 and 16 of the Constitution of India. 3. The learned standing Counsel for the Rubber Board Sri. Siri Jagan submitted that there is no mala fides in the selection process. The selection was done by giving marks strictly in accordance with the scheme and the Board cannot be blamed if the petitioners could not get through. 4. Pursuant to a direction given by this Court on 27-3-2002, the Board has made available the files concerned for perusal. 5. Rule 7 of the Rubber Board (Service) Rules, 1961 provides that the method of recruitment and other matters relating thereto shall be as specified in Columns 7 and 8 of the Schedule appended to the Rules. 4. Pursuant to a direction given by this Court on 27-3-2002, the Board has made available the files concerned for perusal. 5. Rule 7 of the Rubber Board (Service) Rules, 1961 provides that the method of recruitment and other matters relating thereto shall be as specified in Columns 7 and 8 of the Schedule appended to the Rules. 'Field Attenders' are mentioned as Item No. 7 in the Schedule. They come under Class IV. The method of recruitment is mentioned as : "From agricultural workers (preferably in rubber) having good experience to the satisfaction of appointing authority in cultivation practices and with knowledge in reading and writing regional language". 6. The mode of Selection is by direct recruitment. It is not mentioned in the aforesaid Clause that only existing workers of the rubber Board would be entitled to get selected. The mode of selection viz., direct recruitment conceives appointment from the open market as well and any selection process conceived by the Board has to be in such a way that persons who are not connected with the Rubber Board should also be able to compete in the selection process. 7. On a consideration of the manner in which the selection was made, I find that there has been so many irregularities as pointed out by the petitioners. Ext. P1 is the Notification which was put up in the notice board of the Rubber Board and also in the notice boards of the allied nurseries and farms. There is no mention therein with regard to the holding of any written test or with regard to the maximum number of marks and its break up for the written test, interview etc. Nor is it in conformity with the qualifications mentioned in Sl. No. 7 of the schedule appended to the Rules. The mention that persons with 3 years' experience in rubber cultivation would have preference is a clause alien to the requirement mentioned in Clause 7. The Scheme does not also envisage the grant of marks for 'experience' in such a way that the performance in the written test or interview would not be decisive. The mention that maximum age allowed for the applicants would be 45 is also not a matter fully agreeing with the Rules. 8. The Scheme does not also envisage the grant of marks for 'experience' in such a way that the performance in the written test or interview would not be decisive. The mention that maximum age allowed for the applicants would be 45 is also not a matter fully agreeing with the Rules. 8. Rule 6 of the Rules mentions that a person other than one belonging to any scheduled Caste or Scheduled Tribe whose age exceeds 25 years would not ordinarily be appointed to the service by direct recruitment. The proviso to the Rule mentions that the concurrence of the Central Government should be obtained for appointment of persons above 45 years of age. It is not mentioned in Rule 6 that the age could on no account, exceed 45. On the other hand, the mention is that normally the applicant should not be over 25 years of age and even the upper limit of 45 years would be relaxable. These are not reflected in Ext. P1 notification. 9. A perusal of page 10 of the file with the caption 'selection of Field Attender (Kerala)' made available by the Rubber Board for perusal shows that the requisition form sent to the Employment Exchange had an altogether different description with regard to the age and qualifications. According to this, the essential qualification is the following" "Agricultural workers (preferably in rubber) having good experience to the satisfaction of appointing authority in cultivation practices and with knowledge in reading and writing the regional language." The age limit mentioned in Item No. 3 of the requisition was that age should not exceed 25 years as on 1-10-95 relaxable by 5 years in the case of scheduled Caste/Scheduled Tribe and 3 years for OBC candidates. This is also different from the requirement in Rule 6 of the Rules and at variance with the requirements mentioned in Ext. P1. Likewise, in the requisition form in Item No. 9 it is mentioned that candidates with 3 years' experience in rubber cultivation would be preferred. This is also not in conformity with the requirements in Rule 6 and the preferential qualification is not seen separately shown in Ext. P1. It is thus clear that neither Ext. P1 nor the requisition to the Employment Exchange revealed the correct position with regard to the eligibility for recruitment. As already mentioned, neither the notification (Ext. This is also not in conformity with the requirements in Rule 6 and the preferential qualification is not seen separately shown in Ext. P1. It is thus clear that neither Ext. P1 nor the requisition to the Employment Exchange revealed the correct position with regard to the eligibility for recruitment. As already mentioned, neither the notification (Ext. P1), nor the requisition, had mentioned any possibility of any written test or of the Scheme for allotment of marks in the matter of experience, written test or interview. Thus, the very notification was not strictly as per the relevant Rules. 10. The learned standing counsel did not dispute the fact that one and the same question and answer sheets were used for the written test on 18th and 19th December, 1996. His contention is that it did not materially affect the selection process in so far as the question and answer sheets, after it was answered by the candidates who appeared on 18th , were got back and hence there was no possibility of anyone else knowing the precise questions and that the candidates who took the test on 19th would not therefore have been in a position to come prepared with the answers for the questions. 11. The Scheme of getting back of the question and answer sheets is not something new. It is adopted in very many selection tests and entrance examinations these days. But it is nowhere heard of that one and the same question and answer sheets would be used in examinations held on successive dates. The aforesaid aspect has special importance here in so far as there were only 3 questions to be answered in the written test. As can be seen from Ext. R1(b), question No. 1 required a description of the steps for effecting rubber cultivation in 1 Acre of the land. Question No. 2 sought an answer to the question with regard to the total amount required for payment for 5 male and 4 female workers for 5 days at the rate of Rs. 50/- per day for each; and question No. 3 wanted the answer to the question as to the amount of bonus a workman would get at the rate of 30 paise per plant for planting 2000 plants. 50/- per day for each; and question No. 3 wanted the answer to the question as to the amount of bonus a workman would get at the rate of 30 paise per plant for planting 2000 plants. These were all the questions and it is very obvious that any one participating in the test on the Ist day would be able to remember these and in a position to convey it to others who were to take the test on the next day. The use of one and the same question and answer sheet, according to me, was also a defective step in the selection process. 12. The allocation of marks also was devised in such a way that maximum benefit would go to the persons who at least had 7 years' experience under the Board or anywhere else. The total marks for written test was only 20 and the marks for interview was only 15 as against 25 marks for experience. In fact, what is revealed from the mark sheets produced in the case is that one of the petitioners got 19.5 marks out of 20 in the written test, whereas the other got 16. In spite of this, they could not get into the select list though many of the persons including P.V. Chandy, P.V. Jacob and P.V. George of the same family shown as Sl. Nos. 6, 10 and 18 in Ext. P2, select list could find a place in the list for the reason that the maximum of 25 marks was given to them for 'experience'. It is to be mentioned here that the petitioners had obtained more marks in the interview when compared to P.V. Jacob and P.V. George aforementioned and that the 2nd petitioner had more marks in the written test also when compared to all the three brothers aforementioned and the 1st petitioner got 16 marks which was equivalent to that of P.V. Jacob and more than the marks obtained by P.V. Chandy and P.V. George in the written examination. The peculiar method adopted by the Board resulted in total elimination of all the 18 candidates sponsored by the Employment Exchange. It is to be mentioned here that the manner in which the marks would be assigned was not notified anywhere nor in accordance with any stipulation in the Rules. The peculiar method adopted by the Board resulted in total elimination of all the 18 candidates sponsored by the Employment Exchange. It is to be mentioned here that the manner in which the marks would be assigned was not notified anywhere nor in accordance with any stipulation in the Rules. In view of the major defects aforementioned, it cannot be said that there has been a genuine or reasonable selection process in the matter of selecting Field Attenders meant for employment pursuant to the notification in question. Denial of appointment to the petitioners violates Articles 14 and 16 of the Constitution. 13. When the matter was heard, the learned counsel for the petitioners submitted that in view of the fact that the selection took place more than 5 years back, the petitioners are not pressing the cancellation of the select list and retrenchment or reversion of the selected candidates and that they would be satisfied if they are also be given appointment. In this regard, it was pointed out that as per the order passed in C.M.P. No. 36850/96 this court had directed on 18-8-1997, modifying the earlier order restraining the appointments to any of the posts, that such appointment would be provisional and subject to the result of the Original Petition and also that 3 posts of Field Attenders should be kept vacant. During hearing, it is pointed out by the learned counsel on both sides that possibly the mention of 3 posts might be a mistake in so far as only 2 claimants are there in the present petition. Whatever that be, at least 2 posts wherein the petitioners can be fitted in are kept open and the only other question to be considered is whether it would be just and proper to give a direction to give appointment to the petitioners who, as already mentioned, have got sufficient marks for selection in preference to the other course of action viz., cancellation of the entire list. 14. In this regard, the learned counsel for the petitioners relied on the decision in Ashok v. State of Karnataka (AIR 1992 SC 80) where a similar question came up for consideration before the Apex court. 14. In this regard, the learned counsel for the petitioners relied on the decision in Ashok v. State of Karnataka (AIR 1992 SC 80) where a similar question came up for consideration before the Apex court. There, the court noticed that if a proper merit list was prepared, both the appellants before that Court would have been selected and a large number of selected candidates would have been much lower in the merit list than the appellants. However, the Apex court did not set aside the list in spite of the said finding. On the other hand, the Court took into account the fact that the result of selection had been declared in the year 1987 (judgment was in 1992) and the selected candidates had already joined the post. It was found that in the circumstances, it was not just and proper to quash the selection and that it would be appropriate to redress the grievance of the appellants otherwise. The appellants were directed to be given the appointment. 15. On a consideration of all the aspects, I am of the view that the interests of justice would be met in this case (where the selection took place 5 1/2 years ago) if the above course of action is followed. Accordingly, the Original petition is allowed and it is directed that the petitioners be appointed in the Rubber Board as Field Attenders with monetary and other benefits including seniority effective from the date of their joining duty. The third vacancy kept unfilled will be filled through fresh selection process based on fresh notification . The select list in question is invalidated with prospective effect. Necessary orders would be issued within a period of two weeks from the date on which a copy of this judgment is produced before the 1st respondent. Before parting with the case, it is necessary to give a direction to ensure that the malady that crept in the selection process of 1996 resulting in violation of Articles 14 and 16 of the constitution is not repeated by the Rubber Board in any of its future selections to any of the posts covered by the Service Rules. It is directed that the Board should ensure that all selection notifications are given strictly in accordance with the qualifications prescribed in the relevant Rules including on the aspect of age limit. It is directed that the Board should ensure that all selection notifications are given strictly in accordance with the qualifications prescribed in the relevant Rules including on the aspect of age limit. Wherever written test or interview is proposed to be held, details of the proposed scheme including maximum marks set apart for each of the different constituents would be made clear in the notification itself. The notification inviting applications published in the notice board should also agree with the details in the requisition form sent up to the Employment Exchange or is otherwise published in the newspapers or the like. The marks to be awarded for interview and for experience, would also be in such a manner that the ultimate selection would enable only the competent candidates to come out successful; that marks obtained in the written test are not rendered nugatory and ineffective and that equal opportunity to get into the selection list would be available to persons working outside the Rubber Board also.