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2019 DIGILAW 362 (GAU)

Ritupan Dutta v. Oil India Ltd.

2019-03-19

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. KN Choudury, learned senior counsel for the petitioners in WP(C) No. 1584/2017, WP(C) No. 2902/2017 and WP(C) No. 2831/2017, Mr. BD Konwar, learned senior counsel for the petitioners in WP(C) No. 2916/2017 as well as Mr. D. Baruah, learned counsel for the petitioners in WP(C) No. 4770/2017 and WP(C) No. 1022/2017. Also heard SN Sarma, learned counsel appearing for the Oil India Limited, Mr. B. Chakraborty, learned counsel appearing for the private respondents in WP(C) No. 4770/2017, Mr. S. Borthakur, learned counsel for the respondents in WP(C) No. 4770/2017, WP(C) No. 2831/2017 and WP(C) No. 2916/2017, Mr. DK Das, learned counsel for the respondents in WP(C) No. 2902/2017 as well as Mr. B. Kaushik, learned counsel for the respondents in WP(C) No. 1022/2017, WP(C) No. 1584/2017 and WP(C) No. 2902/2017. 2. All the writ petitions are being decided by a common order as the issues raised in all the writ petitions are the same and as they all pertain to the same selection process, held in pursuance to the vacancy notification dated 08.08.2014. The candidates appeared for the written test consisting of 100 marks. All candidates who secured 30% in the written test/screening were thereafter called for interview. The final selection of candidates was made on the basis of the marks obtained in the interview only. 3. The petitioners' having taken part in the selection process for filling up of 175 posts in Oil India Limited, hereinafter referred to as "OIL", under different categories of posts and not having been selected, they have challenged the selection method and selection process. 4. The main ground of challenge of the petitioners is with regard to the fact that the selection and appointment of the successful candidates have been made only on the basis of marks obtained by the candidates in the interview/viva-voce test. The petitioners' contention is that the OIL could not have made the selection only on the basis of the interview marks for which 100 marks had been allotted. They submit that a perusal of the allotment of marks for the interview shows that only 20 marks are objective in nature, while the remaining 80 marks are subjective in nature. As such, there is a likelihood of favoritism and biasness in the selection process. They submit that a perusal of the allotment of marks for the interview shows that only 20 marks are objective in nature, while the remaining 80 marks are subjective in nature. As such, there is a likelihood of favoritism and biasness in the selection process. They also submit that while the Apex Court has laid down the law that high percentage of marks cannot be given for the interview, the respondents have not only done away with consideration of the marks received by the candidates in the written test, but have also relied solely upon the marks received by the candidates in the interview, thereby infecting the selection process with the vice of arbitrariness. 5. The petitioners' counsel submits that there is large scale anomaly in the implementation of the selection method applied by the respondents and that a perusal of the marks given to some of the candidates by the Interview Board, as reflected in the affidavit submitted by the OIL does not tally with the final marks published by the selection committee. 6. With regard to WP(C) No. 1584/2017, the counsel for the petitioners has submitted that the petitioner Nos. 1, 2 and 3 secured 50.50, 56.50 and 65.25 respectively, in the written test/screening test. However, they secured 42., 61.80 and 44.20 marks respectively in the interview. He submits that, on the other hand, the private respondent Nos. 5 to 8 had secured marks below 40 in the written test/screening test while they had obtained marks beyond 60% in the interview. He accordingly, submits that the allocation of less marks to the petitioners in the interview vis-à-vis the high marks received in the written test, points to the fact that there has been arbitrariness and biasness in the selection method adopted by the State respondents, as they have been given a handle to pick and choose candidates they favour, on the basis of marks secured in the interview. 7. The counsel for the petitioners also submits that the fixing of 50% pass marks in the interview process by the State respondents is arbitrary, as the same was never reflected in the advertisement/vacancy notification issued by the State respondents. 7. The counsel for the petitioners also submits that the fixing of 50% pass marks in the interview process by the State respondents is arbitrary, as the same was never reflected in the advertisement/vacancy notification issued by the State respondents. They also submit that the petitioners were not made aware that the appointments would be made strictly on the basis of the marks obtained in the interview and accordingly, the final selection, which was made solely on the basis of marks in the interview cannot withstand the scrutiny of the law. The long and short of the petitioners' counsel submission is that the selection and appointment cannot be made solely on the basis of the marks secured in the interview and the same should have been done by combining/totaling the marks obtained in the both written test and interview. In support of their submissions, the counsels have relied upon various judgments of the Apex Court. 8. The counsels for the respondents, on the other hand, submit that the advertisement/vacancy notification clearly spelt out the selection procedure to be followed and same clearly stated that the selection would be based solely in order of merit, on the basis of marks obtained in the interview. They further state that the selection can be made solely on the basis of marks obtained in the interview and the judgments cited by the counsels for the petitioners are not relevant to the case in hand, inasmuch as, the case laws cited by the petitioners' counsels pertains to the marks to be allotted for interview, when the selection is to be made on the basis of marks secured in both the written test and interview. However, in the present case, the selection procedure stipulated in the advertisement/vacancy notification clearly provides that selection would be made only on the basis of the marks obtained in the interview. 9. The counsel for the respondents also submit that the petitioners have mistakenly taken the marks given by one interviewer, as reflected in the affidavit-in-opposition filed by the OIL, to be the final and total marks of that particular candidate. They submit that the Interview Board consisted of 5 (five) persons and the average marks obtained by each candidates from the 5 (five) interviewers was reflected in the final chart giving the final marks obtained by the candidates. They submit that the Interview Board consisted of 5 (five) persons and the average marks obtained by each candidates from the 5 (five) interviewers was reflected in the final chart giving the final marks obtained by the candidates. They also submit that the petitioners have not denied the fact that the selected candidates have been selected on the basis of merit, i.e., the marks obtained by them in the interview. They also submit that the petitioners having taken part in the selection process, they cannot be allowed to turn around and challenge the selection method or the selection process. 10. I have heard the learned counsels appearing for the parties. 11. The advertisement/vacancy notification dated 08.08.2014 issued by OIL, called for filling up of unskilled (Tradesman-I/Attendant-I) Grade-I posts. Altogether, 175 posts were to be filled up and the said posts were to be filled by the following persons, as follows:- i. Land affected- 70 posts. ii. Local man- 61 posts. iii. Employees' son- 44 posts. The selection procedure provided in the advertisement/vacancy notification is reproduced below:- "E. Selection Procedure: Only those candidates, who fulfill criteria mentioned as on 01.08.2014 shall be called for Screening test. Those who obtain 30% marks & above in Screening test will qualify for interview/viva-voce. The selection will be based in order of merit on the basis of the marks obtained in interview-viva-voce." 12. The selection procedure provided in the vacancy notification clearly states that only those persons who have secured 30 marks in the written test/screening test are qualified for interview and that the selection will be based in order of merit and on the basis of marks obtained in the interview. It is not disputed by the parties herein that the petitioners have secured less marks in the interview than the selected candidates. The basic question to be considered is whether the candidates could have been selected solely on the basis of marks secured in the interview and without considering the marks secured by the candidates in the written test. 13. In the case of Ajay Hasia & Ors. Vs. The basic question to be considered is whether the candidates could have been selected solely on the basis of marks secured in the interview and without considering the marks secured by the candidates in the written test. 13. In the case of Ajay Hasia & Ors. Vs. Khalid Mujib Sehravardi & Ors., reported in (1981) 1 SCC 722 , where the selection was to be made on the basis of marks obtained by the candidate in the written test and interview, the Apex Court has held that in the matter of admission to college or even in the matter of public employment, the oral interview test should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test. The Apex court further held that allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid as allocation of higher percentage of marks for oral interview is illegal. In the case of D.V. Bakshi & Ors. Vs. Union of India & Ors., reported in (1993) 3 SCC 663 , the Apex Court at para 7 has held as follows:- "7. The submission that the provision for clearing the oral test with atleast 50 per cent marks is susceptible to misuse, namely, to eliminate some and to accommodate others needs closer scrutiny. The submission is general in nature and would be true in all such cases where passing of an oral test is a 'must' to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar's, case (supra) a written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. As observed in Lila Dhar's, case (supra) a written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records or the oral test. But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well-founded. In the case of Anzar Ahmad Vs. State of Bihar & Ors., reported in (1994) 1 SCC 150 , the Apex Court at para 14 has held as follows:- "14. These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis-à-vis marks for written examination can arise when written examination as well as viva voice test are both accepted as essential features of proper selection and there also no hard and fast rule regarding the precise weight to be given to the viva voice test as against written examination, can be laid down and the said weight must vary from service to service according to the requirement of the service. The question of weight to be attached to viva voice would not arise where the selection is to be made on the basis of interview only. The question of weight to be attached to viva voice would not arise where the selection is to be made on the basis of interview only. In Ashok Kumar Yadav case, this Court has held that in the case of ex-service officers viva voice test may be attached relatively greater weight because the personalities of such officers being fully mature and developed it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva voice test. But at the same time the Court felt that the allocation of 33.3% marks for viva voice test for ex-service officers and 22.2% for other candidates was excessive and that the same should not exceed 25% for ex-service officers and 12.2% for other candidates." 14. A perusal of the above judgments would show that the selection was to be made on the basis of marks obtained in the written test and oral interview. It was in the above context that the Apex Court, in the above cases had expressed its opinion that there could not have been allocation of a very high percentage of marks for the oral interview, as the same was susceptible to misuse and favoritism. However in the present case, the final selection was to be done only on the basis of the marks obtained by the candidates in the interview/viva-voce, after having qualified in the screening test/written test. In the case of Kiran Gupta Vs. State of U.P., reported in (2000) 7 SCC 719 , the Apex Court has held that where oral interview alone is the criteria for selection/appointment/promotion to any posts, the question of higher percentage of marks for interview does not arise. Para 22 of the judgment of the Apex Court in Kiran Gupta (Supra) is reproduced below:- "22. It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for interview does not arise. Therefore, we think it an exercise in futility to discuss these cases - Minor A. Peeriakaruppan v. State of T.N. and Ajay Hasia v. Khalid Mujib Sehravardi - relied upon by Mr. Goswami, which deal with admission to educational institutions/schools and also cases where prescribed method of recruitment was written test followed by an interview - Ashok Kumar Yadav v. State of Haryana; D.V. Bakshi v. Union of India and Krishna Yadav v. State of Haryana." In the case of Buli Bhattacharjee Vs. State of Assam & Ors., reported in (2017) 5 GLR 175, this court has held at para 6 and 7 as follows:- "6. From the Compiled Result Sheet (Annexure-D), it appears that marks had only been awarded in respect of the viva voce test. It, thus, appear that recruitment to the post of Peon was confined only to a selection by way of viva-voce test. It was not on the basis of marks obtained in Written Test and viva voce test. 7. The issue as to whether the State respondents can be allowed to allot higher percentage of marks in an interview was considered by the Apex Court in the case of Kiran Gupta v. State of UP, (2007) 7 SCC 719. It was not on the basis of marks obtained in Written Test and viva voce test. 7. The issue as to whether the State respondents can be allowed to allot higher percentage of marks in an interview was considered by the Apex Court in the case of Kiran Gupta v. State of UP, (2007) 7 SCC 719. At paragraph 22 of the said case, the Apex Court have held that there is no rule of thumb with regard to allotment of percentage of marks for interview. It was also held that percentage of marks allotted for interview in cases of Educational Institutions/Schools will not afford proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to posts in various services. Further, where oral interview alone was made the criteria for selection/appointment to any post, the question of higher percentage of marks for interview would not arise. The said case in Kiran Gupta (supra) is squarely applicable in the instant case. To reiterate, selection for the post of Peon was only confined to a selection made by way of an oral interview." The Judgment of the Apex Court in Kiran Gupta (Supra) has made it clear that the question of whether the percentage of marks given for interview is high or low does not arise, when the selection is to be made only on the basis of an oral interview. This has also been followed by this Court in Buli Bhattacharjee (Supra). Further, the question of whether there was favoritism in the selection process does not arise, as the candidates had to first pass the written test/screening test, against which the petitioners have no grievance. Accordingly, this Court holds that the candidates can be selected solely on the basis of marks secured in the interview, as provided in the selection procedure in the Vacancy Notification dated 08.08.2014. 15. In respect of the submission made by the counsel for the petitioners' that the fact that some of the petitioners secured higher marks in the written test, while securing lower marks in the oral interview points towards the fact that the selection process had been misused, is not accepted by this Court, in view of the fact that there is hardly any difference in the marks obtained in the written test vis-à-vis the oral interview, by the petitioner Nos. 1, 2 and 3 in WP(C) No. 1584/2017, as recorded in para 6 of this order. This Court finds that picking up instances of allotment of marks secured in the written test and in the oral interview, without there being any proof of misuse, cannot be the basis for striking down the method of selection or the final selection made. There is no guarantee that a person who fared well in the written test will also fare well in the oral interview. In the present case, the petitioner Nos. 1, 2 and 3 in WP(C) No. 1584/2017 secured 50.50, 56.50 and 65.25 respectively in the written/screening test. However, they secured 42, 61.80 and 44.20 marks in the interview. Just because the private respondent Nos. 5 to 8 in WP(C) No. 1584/2017 had secured marks below 40 in the written/screening test, while obtaining marks beyond 60% in the interview does not prove that there was favoritism or unfairness applied in the interview. There is no specific allegation of malafide against any particular member of the Selection Board. Accordingly, the challenge made by the petitioners on this count is found to be unsustainable. Further, the petitioners having taken part in the selection process and not having been successful, they cannot be allowed to turn around and challenge the selection method/process. In this respect, the Apex Court, in the case of Ramesh Chandra Shah & Ors Vs. Anil Joshi & Ors., reported in (2013) 11 SCC 309 has held that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome. 16. In the case of Bishnu Biswas & Ors. Vs. Union of India & Ors., reported in (2014) 5 SCC 774 , the Apex Court at para 10 has held as follows:- "10. In P. Mohanan Pillai v. State of Kerala & Ors., AIR 2007 SC 2840 , this Court has held as under : "It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed."" In the case of Director General, Indian Council for Agricultural Research & Ors. Vs. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed."" In the case of Director General, Indian Council for Agricultural Research & Ors. Vs. D. Sundara Raju, reported in (2011) 6 SCC 605 , the Apex Court at para 40 and 42 has held as follows:- "40. The respondent was not disclosed by the appellant either that the interview would be held for evaluating personal or intellectual qualities that attribute a Scientist and that it shall carry 50% of the total marks. This is uncontroverted position. Had the appellants disclosed the method of evaluation the respondent may have challenged the same before participating in the selection process. 42. The appellants were totally unjustified in allocating 50% marks for the interview particularly when the appellants did not even disclose to the respondent that the interview would also be held to evaluate suitability of the candidate for the said post. The procedure evolved by the Selection Committee for evaluating the respondent was totally arbitrary and contrary to the settled legal position." In the case of Praveen Singh Vs. State of Punjab & Ors., reported in (2000) 8 SCC 633 , the Apex Court at para 13 has held as follows:- "13. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok & Ors. v. State of Karnataka ( 1992 (1) SCC 28 ). Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria." In the present case, Clause E of the Vacancy Notification dated 08.08.2014 clearly stipulates that, those who obtained 30% marks and above in the screening test would qualify for interview/viva-voce and that the final selection would be based in order of merit, on the basis of marks obtained in interview/viva-voce. The State respondents having disclosed the fact that the marks obtained in the interview would be the basis for selection, there is no illegality committed by the State respondents in making the final selection, only on the basis of marks obtained by the candidates in the interview. Further, the petitioners being well aware of Clause E of the Vacancy Notification dated 08.08.2014, the petitioners could have challenged Clause E, if they were aggrieved by the selection method stated therein. However, without making a challenge to the same, the petitioners took part in the selection process. As they were unsuccessful in the selection process, they have now made a challenge to the same selection process, in which they had participated. As stated above, the petitioners cannot be allowed to challenge the selection method and its outcome, after having participated in the same. 17. With regard to the submission of the petitioners' counsel that the petitioners had been asked only 4 to 5 questions in their interview, which lasted for a period of approximately 5 (five) minutes, the same is denied by the OIL in para 19 of their affidavit-in-opposition filed in WP(C) No. 4770/2017. Thus, the submission made by the petitioner's counsel in this behalf, cannot be accepted, as this is a disputed question of fact. 18. With regard to the stand taken by the petitioners' counsels that out of 100 marks, 80 marks were subjective in nature, while 20 marks were objective, the Apex Court in the case of Lila Dhar Vs. State of Rajasthan & Ors., reported in (1981) 4 SCC 159 , has held at para 8 as follows:- "8. The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview test. The criteria for the interview test has been laid down by the rules. It is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under different heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate's personality. The award of marks under different heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate's personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive." The Selection Board having provided the manner in which marks would be allocated under different heads for the interview test, this Court is not in a position to sit in judgment over the methods of marking and the allotment of marks employed by the Selection Board, as there is no proof that the allocation of marks had been done on the basis of oblique motives and due to biasness. 19. In view of the fact that the petitioners were well aware that after the candidates had cleared the bench mark in the screening test, the final selection would be made solely on the basis of marks obtained in the interview, in which the petitioners had participated, this Court finds no infirmity with the selection of the candidates made by the State respondents in pursuance to the Vacancy Notification dated 08.08.2014. 20. The writ petitions are accordingly dismissed.