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2003 DIGILAW 6 (PAT)

Abhishek Anand v. Union of India

2003-01-03

S.N.JHA

body2003
Judgment S.N. JHA, J.:- The dispute in this case related to appointment on the post of Apprentice Development Officer (in short 'ADO') in the Bhagalpur Division of the Life Insurance Corporation of India (in short the 'Corporation'). The petitioner seeks quashing of the selection /appointment of ADOs, who have been implemented as respondents 4 to 27 in the case, and a direction for appointment on the post. 2. The case of the petitioner, briefly stated, is as follows. On 5.1.99 the Eastern Zonal office of the Corporation at Calcutta invited applications through Employment Notice for appointment of ADOs in different divisional offices under its jurisdiction including Bhagalpur Division. In Bhagalpur Division 25 posts were advertised out of which 12 were general. Out of remaining 13 posts 4 posts were reserved for Scheduled Castes (SC),3 for Scheduled Tribes (ST) and 6 for Other Backward Category Classes (OBC). The Employment Notice indicated that selection will be made also from amongst the agents and class III employees of the Corporation apart from the open market, through there was no indication that post/posts would be reserved form them. The petitioner applied in the proforma meant for open market candidates against OBC quota of posts. Pursuant to cal letter he appeared at the written test comprising of two papers of 50 marks each. Being successful in the written test on 7.5.99 he was called for interview at which he appeared on 27.5.99. He fared well at the interview but in the list of finally successful candidates his name was not there. The case of the petitioner is that from the final result sheet it transpired that out of 12 general posts. 6 were filled from the agents while 2 were filled from the employees and open market. Similarly, out of 6 OBC quota posts, 3 were filled from the agents while 2 were filled from the employees and only one from the open market. It is not necessary to notice the particulars of the posts in the SC or ST catagories filled from amongst the agents, employees or open market as we are concerned with selection in the OBC category alone in this case. 3. The case of the petitioner is that the Employment Notice provided for only one type of reservation, for the SC/ST and OBC candidates. Further reservation for the agents or the employees was illegal. 3. The case of the petitioner is that the Employment Notice provided for only one type of reservation, for the SC/ST and OBC candidates. Further reservation for the agents or the employees was illegal. According to the petitioner, further, there should have been a common result and those securing higher marks should have been preferred. The petitioner secured the second highest marks in the OBC category but candidates securing lesser marks than him were selected from amongst the agents and employees. This, according to the petitioner, was in the teeth 9f Article 14 of the Constitution. Had there been such reservation for the agents and/or the employees, candidates would have been called for interview as per the number of vacancies in the ratio of 1:5. What happened was that 18 persons were called from open market. Similarly in the agents category 15 candidates should have been called for 3 posts in the ratio of 1:5 but only 5 were called. According to the petitioner, further, the selection of the candidates was also bad on account of excessive allocation of marks for interview being equal to the marks in the written examination. 4. The case of the Corporation, shortly stated, is that recruitment of ADOs is made from three sources, namely, agents, class III employees of the Corporation and the open market governed by separate eligibility criteria except the common qualification of graduation. The selection is also separate inasmuch as paper II of the written test is different for each of them. Whereas paper II for the candidates from the open market comprised of "Test of Reasoning and Numerical Ability", for the agents paper II comprised of "Elements of 'insurance and Marketing of Insurance". Similarly, for candidates in the employees category paper II comprised of "Theory and Practice of Insurance Marketing". The result also were published separately and thus there being no common selection a candidate competing in one category could not be treated at par and be equated with candidates in the other categories. Further stand of the Corporation is that agents are generally better equipped to take up the job of Development Officer than the employees or 'open market' candidates because in the life insurance business marketing has a unique place and agents are given preference considering their experience in marketing. Further stand of the Corporation is that agents are generally better equipped to take up the job of Development Officer than the employees or 'open market' candidates because in the life insurance business marketing has a unique place and agents are given preference considering their experience in marketing. Thus, 50% vacancies are filled from amongst the agents and the rest 50% from the employees and the open market. 5. At the stage of the hearing, pursuant to direction of the Court to find out as to whether selection had been made under some rule or general policy, the Corporation filed supplementary affidavit bringing on record the Life Insurance Corporation of India (Recruitment of Apprentice Development Officers) Regulations, 1998 from which it appears that the policy to recruit agents on the posts of ADO to the extent of 50% of the vacancies has been given a statutory sanction. It may be mentioned that the said Regulation has been framed under Section 49 of the Life Insurance Act, 1956 with the previous approval of the Central Government. Note 2 to the Eligibility clause under Regulation 4 is relevant in the context of the controversy relating to percentage of recruitment from different sources. It runs as under: "The number of Apprentice Development Officers recruited from among the employees and open market shall not exceed 25% each of the total number of Apprentice Development Officers to be recruited on anyone occasion and in case of agents it shall not exceed 50% of the total number of Apprentice Development Officers to be recruited on anyone occasion.-However, if sufficient number of candidates are not available from any stream to fill in all the vacancies reserved for the stream then such vacancies may be filled in from amongst the candidates available in the other stream." 6. It was submitted on behalf of the petitioner that the Regulations came into force with effect from 2.2.99 when it was published in the gazette, and as the advertisement had been published earlier, on 5.1.99, with respect of earlier vacancies, and with the issuance of the advertisement recruitment process had commenced, the Regulations cannot be applied retrospectively. Reliance was placed on N.T. Bevin Katti V. Karnataka Public Service Commission, AIR 1990 Supreme Court 1233, Dr. P.N. Dubey & ors. V. State of M.P., (1997) 3 SCC 497 , and Buddhi Nath Chaudhary V. Abhai Kumar & ors., 2000(1) PLJR 681. Reliance was placed on N.T. Bevin Katti V. Karnataka Public Service Commission, AIR 1990 Supreme Court 1233, Dr. P.N. Dubey & ors. V. State of M.P., (1997) 3 SCC 497 , and Buddhi Nath Chaudhary V. Abhai Kumar & ors., 2000(1) PLJR 681. The submission is wholly misconceived and the decisions are not at all relevant. It is true that as per Regulation 1.2, the Regulations were to come into force from the date of publication in the Gazette of India and such publication was made on 2.2.99 but undisputedly the notification is dated 15.12.98. It is apparent that the Employment Notice, dated 5.1.99, was pursuant to and in the light of the said Regulations. Even going by the words of Regulation 1.2, it would appear, written test, interview etc. were held after the publication in the gazette. The Note (supra) refers to the stage of recruitment. It provides that the number of the recruits in different streams shall not exceed the prescribed percentage of posts; however, if sufficient number of candidates are not available in one stream, the vacancies meant for that particular stream may be filled, from candidates available in other category. 7. Counsel submitted the even the Note refers to "reserved" vacancies, meaning thereby that the vacancies are reserved for the agents, employees and the open market. This submission, too, does not have substance. The Employment Notice contemplated only one type of reservation - for the 5C, 5T and OBC. What the Regulations contemplates is that the recruitment shall not normally exceed the particular percentage of posts for the agents, employees and open market candidates. That reflects the policy of the Corporation to give weightage to the agents having regard to their expertise. It has been stated in the counter affidavit that the duties required to be performed by ADOs are primarily in the nature of sales supervision. The selected candidates are required to recruit agents, train them properly and help them to sell life insurance policies to maximum number of persons through their agents. They are also required to give prompt after-sale service to the policy holders for which considerable movements are required at their end keeping in view the nature of the job of ADOs. The selected candidates are required to recruit agents, train them properly and help them to sell life insurance policies to maximum number of persons through their agents. They are also required to give prompt after-sale service to the policy holders for which considerable movements are required at their end keeping in view the nature of the job of ADOs. The Corporation therefore is of the view that the agents are generally better equipped to take up the job of a Development Officer than the employees and the open market candidates. I do not think this Court can interfere with the policy to recruit more from the agents than the open market. The submissions on behalf of the petitioner in this regard, therefore, must be rejected. 8. Counsel submitted that so far as the remaining three posts out of six posts are concerned, selection of only one candidate from open market was less than 25%. On the other hand, selection of two employees was in excess of their 25% share. The submission sounds attractive but if accepted would lead to the same anomaly. Out of three posts, the third post had to go to the share of either the employees or open market. There was no question of post being divided between the two. If the third post were to be tilled from open market, similar grievance would have been made by the employee-candidates. 9. Counsel then submitted that the Regulations contemplates merit list on the basis of marks secured at the written test and the interview and as the petitioner had secured second highest marks in the OBC category, he should have been preferred. The submission cannot be accepted for the reason that selection was not common the examination being different for each of the streams, the merit of the candidate could not be comparatively judged on the basis of marks secured by them and, therefore, the submission has to be rejected. 10. Having regard to the mode of selection' putting the candidates who had secured the qualifying marks in the select list and calling them for interview irrespective of the number of posts to be filled from different streams. The plea of the petitioner that the candidates were not called for interview in the ratio of 1:5 in different streams does not have substance. The plea of the petitioner that the candidates were not called for interview in the ratio of 1:5 in different streams does not have substance. It rather lends support to the stand of the Corporation that there was, no reservation' for the agents and the employees. The plea would have had force had the post(s) been identified and reserved according to roster otherwise for one or the other stream. The reservation was only for S.C, S.T. and OBC and that is how 30 candidates were called from OBC category in the ratio of 1:5. Amongst those who secured the qualifying marks were called for interview the selection was finally made keeping in view the policy to give weightage or preference to the agents and that is how out of six posts in the OBC category three agents were selected. 11. It was next submitted that selection on the basis of excessive allocation of marks for the interview cannot be said to be in accordance with law. It was pointed out that against written examination of 100 marks, the marks allocated for the interview also was 100, thus comprising 50% of the total marks. The allocation of marks, according to the counsel, was disproportionate vitiating the selection. It was submitted that allocation of as high as 50% marks for interview exposes selection process to extrarneous considerations. In this regard reliance was placed on Vikram Singh & anr. V. The Subordinate Services Selection Board, Haryana & ors., AIR 1991 Supreme Court 1011, Ashok @ Somanna Gowda & anr. V. State of Karnataka & ors., 1992(1) PLJ R 101 (SC) = 1992(1) SCC 28 , Madhukar Bakru Pingal v. Rajendra D. Gaikwad & ors. , 1995(6) SCC 42 , Coal India Limited v. Rajib Ranjan Kumar & ors. (1997) 2 PLJR 450. 12. But before I deal with the above submission of the counsel, it may be relevant to mention that the petitioner was awarded 3rd highest marks (53.00) in the interview whereas in the written test he had secured the lowest marks (84.70) along with the one Sanjay Barnwal. On the other hand, the candidate who was finally selected from the open market, namely Niraj Kumar, had secured highest. (89.60) marks in the written test and 60 marks' in the interview. On the other hand, the candidate who was finally selected from the open market, namely Niraj Kumar, had secured highest. (89.60) marks in the written test and 60 marks' in the interview. The candidate who was awarded the second highest marks in the interview, namely, Lakshman Prasad, had secured 87.40 marks in the written test. Having regard to the marks secured by the petitioner in the written test, 'third highest marks (53.00) awarded in the interview, prima facie, would not seem to have caused any prejudice to him. As a matter, the marks awarded to him in the interview rather helped him improve his overall position to number 4 of the ranking list. If his merit were to be adjudged only on the basis of the written marks or interview would have been held for lesser marks he would not have been placed at the fourth place in the ranking list. The petitioner thus cannot say, on facts, that allocation of 50% marks for the interview vitiated the selection process. 13. The question as to how much weightage should be given to the interview marks has been subject matter of debate ever since the case of R. Chitralekha v. State of Mysore & ors., AIR 1964 Supreme Court 1823, and A. Periakarappan v. State of Tamil Nadu, (1997) 1 SCC 38. In Ajay liashia v. Khalid Mujib , (1981) 1 SCC 722 , which was a case relating to educational institution decided by a' Constitution Bench, the Supreme Court observed that oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the Gral Interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its results is influenced by many uncertain factors and it is capable of abuse. In Liladhar v. State of Rajasthan, (1981) 4 SCC 159 , a decision which has been cited in almost all subsequent cases with approval, the Supreme Court observed that where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in latter life, greater weight has per force to be given to performance in the written examination. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. It would be appropriate to quote certain observations in the said decision as under:- "There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview-test is proposed to be entrusted and a host of other factors. It is a matter of research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives." Reference may usefully be made to the case of Anjar Ahmed v. State of Bihar, (1994) 1 SCC 150 , in which allocation of 50% marks for interview in the matter of recruitment on the post of Unani Medical Officer was upheld. 14. In paragraph 25 of the counter affidavit, giving reference to a decision of this Court in the case of S.K. P. Sahi v. Life Insurance Corporation of India (CWJC No. 11009/96), it has been stated that having regard to the nature of t:-,e job required to be performed by the ADOs, as briefly referred to above, which is in the nature of sale promotion-performance of a candidate in the interview is a very importance consideration to judge the potential of a candidate. The stand of the Corporation appears to be in accord with the decisions of the Supreme Court referred to above. 15. The case of Vikram Singh V. Subordinate Services Selection Board (supra) relied upon by the counsel for the petitioner was a case of recruitment OM the post of Excise Inspector from the open market. The case of Ashok @ Somanna (supra) was a case of recruitment of Assistant Engineers (Civil) and (Mech.) in the Public Works Department, again, from the open market. The case of Madhukat Bakfu Pingal v. Rajendra D. Gaikwad (supra) was a case of recruitment of Police Patils, lastly the case of Coal India Limited v. Rajib Ranjan Kumar (supra) was one of the appointment of Junior Executive Trainees in the Coal India Limited. The case of Madhukat Bakfu Pingal v. Rajendra D. Gaikwad (supra) was a case of recruitment of Police Patils, lastly the case of Coal India Limited v. Rajib Ranjan Kumar (supra) was one of the appointment of Junior Executive Trainees in the Coal India Limited. In each of the cases Court held the allocation of marks for the interview to be excessive, but as seen above there cannot be any hard and fast rule that interview marks cannot exceed certain percentage. That would depend on the nature of the job requirement to be performed by the appointees etc. If the job of ADOs requires greater public interaction, the activities of the Corporation being commercial in nature, its job being to sell the life insurance policies, the academic attainments which can be better adjudged at the written test, will be of lesser value compared to his ability to promote sale of insurance policies. If thus equal weight has been given to the interview marks as the written marks upheld by this Court in the case of S.K.P. Sahi, it would be difficult for this Court to hold that the allocation was excessive. At least, as seen above, in the facts and circumstances of the case, the petitioner cannot make any complaint to that effect. 16. Lastly, it was submitted that as the petitioner had secured second highest marks in the OBC category- mare than the candidates selected in the employees category he should be considered for the available vacancy. The submission, was made en the premise that for 25 vacancies, only 24 appointments have been made. The Corporation has filed affidavit stating that on verification from the Bhagalpur Divisional Office it appears that one Shri S. Bhengra, a Scheduled Tribe candidate, did not join and as such only 24 posts were filled up in the year 1999, but in the subsquent year the said vacancy was taken care of and as such, as on date, there is no vacancy available against which the candidature of the petitioner can be considered. In my opinion, apart from the fact that 25th vacancy has since been filled up, the vacancy on account of non-joining on a post in the S.T. category, it is doubtful, could go to the petitioner, a candidate in the OBC category. However, as the post has already been filled up, that question does not arise for further consideration. In my opinion, apart from the fact that 25th vacancy has since been filled up, the vacancy on account of non-joining on a post in the S.T. category, it is doubtful, could go to the petitioner, a candidate in the OBC category. However, as the post has already been filled up, that question does not arise for further consideration. Counsel for the Corporation rightly pointed out that the petitioner' position in the ranking list of OBC candidates being fourth, the Court would not like to issue any direction in his favour bypassing the claim of the others two above him. 17. Before I close the discussion, it would be worth mentioning that recruitment of ADOs in the Bhagalpur Division was subject matter of consideration earlier also in the case of Binod Kumar Verma & ors. (CWJC No. 4838/99) which was dismissed by this Court on 13.3.2000. In that order also the Court noticed the fact that all vacancies had been filled up. The decision, it was stated, was upheld by the Division Bench in LPA No. 653/2000. 18. The contentions of the petitioner having thus been rejected, the petition must fail and the same is accordingly dismissed. There will be no order as to costs.