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2022 DIGILAW 1817 (RAJ)

Neel Kamal v. Union Of India

2022-05-27

SAMEER JAIN

body2022
JUDGMENT 1. The present petition is filed in the matter of selection for the post of Junior Assistant against the vacancies published vide advertisement dated 10.12.2013 and against the impugned order dated 27.02.2019 passed by the respondents. The present petition was amended with following prayers:- "i. That the respondents may be directed to declare the entire result merit wise along with marks for the post of Junior Assistant/Stenographer. ii. That the respondents may be directed to appoint the petitioner on the post of Junior Assistant against the third vacancy reserved for OBC w.e.f., the date from which any of successful candidate has been appointed or at least from the dates from which the candidates from the waiting list have been allowed to join the post of Junior Assistant. iii. That it may be declared that any decision taken by the respondents or by its board of Governors after the initiation or recruitment process i.e. after the issuance of the advertisement including B.O.G. decision dated 21.03.2004 will not be binding retrospectively and on the present recruitment process initiated in view of the advertisement no. 05/MNIT/ESTT./2013 (Annex-1) iv. That any appointment order issued any of the private respondents on the post of the Junior Assistant overriding the claim of the petitioner as a candidate appearing in the selection process may be quashed and set aside. v. That the decision of the respondents to offer post of Junior Assistant to candidates who had appeared for the post of Accountant including private respondents may be quashed and set aside. Accordingly any appointment letter issued to the private respondents or any other person may be quashed and set aside. v(a) By an appropriate writ, order or direction the impugned order dated 27.02.2019read with recommendation made by the meeting of the Board of Governors held on 10.02.2019 (Annexure - 7A) may kindly be declared as illegal, arbitrary and unjust and same be quashed and set aside. The petitioner be declared to be very much suitable for 3rd vacancy in OBC category for post of Junior Assistant. vi. Any other appropriate relief, which is deemed just and proper in above mentioned facts and circumstance, may also be granted to the petitioner along with the cost of the writ petition." 2. Learned counsel for the petitioner submits that one advertisement dated 10.12.2013 was issued for recruitment on various post of non-teaching staff, including that of Junior Assistant. vi. Any other appropriate relief, which is deemed just and proper in above mentioned facts and circumstance, may also be granted to the petitioner along with the cost of the writ petition." 2. Learned counsel for the petitioner submits that one advertisement dated 10.12.2013 was issued for recruitment on various post of non-teaching staff, including that of Junior Assistant. Later, by way of corrigendum, the post of Junior Assistant/Stenographer were increased from 4 to 11 out of which 3 posts were reserved for OBC candidates and 1 for exservicemen. The petitioner applied for the post of Junior Assistant under OBC category. He cleared screening test, written test and the trade test. He was called for interview, which was held on 05.03.2014, however, his result was not declared. The respondents issued a list of successful candidates and also a waiting list on 26.05.2014. It is further submitted that since there was no minimum marks prescribed in the advertisement for interview or in aggregate, it cannot be presumed that applicant had failed. The petitioner had applied under the category of OBC wherein, as per the revised advertisement, three vacancies were available. As per the knowledge and submissions of the petitioner, only two seats qua OBC were filled. It is also submitted that the waiting list prepared for the Lower Ministerial Post wrongly includes names of 5 candidates who applied for and interviewed for the post of Accountant, which is a Ministerial Higher Post. In support of the contention, he has relied upon the advertisement and has submitted that there were different qualifications for the post of Ministerial Higher Superintendent/Accountant and Junior Assistant/Stenographer. As per the petitioner, if any candidate who wished to apply for more than one post, as per the advertisement, was required to apply separately for each post in the prescribed manner. 3. Counsel for the petitioner has also relied upon Result Of Interview (document marked as Annexure-R/2), which was submitted by the respondents with their reply. He submitted that it is an admitted fact that only two people were selected under the OBC category and the third post remain vacant, as per respondents own admission that no other candidate was found suitable. Counsel for the petitioner has also relied upon Result Of Interview (document marked as Annexure-R/2), which was submitted by the respondents with their reply. He submitted that it is an admitted fact that only two people were selected under the OBC category and the third post remain vacant, as per respondents own admission that no other candidate was found suitable. He submitted that he has secured 45 marks in the OBC category and as per him he stood at serial no.3 and therefore, he is entitled for the said post in terms of the advertisement and as per results specified in Annexure-R/2. He further submitted that the decision taken by the Board of Governors on 21.03.2014 is dehors the statutory rules and the advertisement as the respondents have offered Lower Ministerial post to applicants seeking appointment in Higher Ministerial post and as per him, the vacant OBC post was also fulfilled by such applicants even though, as per requirement of the advertisement, they have not filled the application separately for different posts in the prescribed manner. He submitted that in the light of same he has preferred the present petition and this Court, vide order dated 02.07.2014, has clearly specified that appointment of respondents No.4 to 10, would be subject to outcome of the petition. 4. Counsel for the petitioner has relied upon the judgment of Hon’ble Apex Court in the case of Prakash Chand Meena and Ors. Vs. State of Rajasthan and Ors. reported in (2015) 8 SCC 484 and Rekha Chaturvedi (Smt) Vs. University of Rajasthan and Ors. reported in 1993 Supp. (3) SCC 168 wherein it has been held that there can be no change in grounds post advertisement i.e. rules of the game cannot be changed. 5. Per contra, Senior Counsel for the respondents, Mr. R.N. Mathur has submitted that the writ of mandamus cannot be issued in the present case as malafide is not alleged against the Selection Committee or Board of Directors or against other respondents. It is also not in dispute that successful candidates duly selected are recruited against the advertisement. The prayer made by the petitioner themselves admit the above fact. As per him, the Selection Committee only makes recommendations and it is the appointing authority which appoints any candidates in terms of regulations of the NIT in Part 11-Section 3 (1)(12) which is reiterated below:- "12. The prayer made by the petitioner themselves admit the above fact. As per him, the Selection Committee only makes recommendations and it is the appointing authority which appoints any candidates in terms of regulations of the NIT in Part 11-Section 3 (1)(12) which is reiterated below:- "12. At the time of interview, the Selection Committee shall examine credentials of all candidates who have been called for the interview, interview the eligible candidates and recommend the appointment of the most suitable candidate to the competent authority for approval." 6. Mr. R.N. Mathur has also submitted that on perusal of document marked as Annexure-R/2, it is clear that the Selection Committee, after analysis of the candidates, has taken a criteria of minimum 50 marks as cut-off. The petitioner had secured total of 45 marks only, including 3 marks of the interview and he was therefore not considered suitable for the post of Junior Assistant. The categorical remark in Annexure-R/2 clearly states that, for the third OBC seat, no one was found suitable. The criteria adopted by the Selection Committee, of minimum cutoff marks, was within discretionary domain/power of the Selection Committee. He emphazied that Selection Committee comprised of several members, including experts from outside the institute, nominee of Ministry of Human Resource Department, Government of India etc., who have consciously selected suitable candidates. He further submitted that the Selection Committee in its wisdom, after due selection process, had merely recommended the names to the Board of Approval who, in the light of regulation 3.1.12, selected the most suitable candidate. As per him, under the given circumstances, when the seats were vacant, the Board of approval had taken a conscious decision to fill the same from the post of Senior Assistant/Accountant, which is valid in law and is made in terms of regulation 3.1.12. In support of his contention he relied upon judgments of Hon’ble Apex Court in the case of Hari Bansh Lal Vs. Sahodar Prasad Mahto and Ors. reported in (2010) 9 SCC 655 , State of Orissa and Ors. Vs. Gopinath Dash and Ors. reported in (2005) 13 SCC 495 , Rekha Chaturvedi (Smt) Vs. University of Rajasthan and Ors. reported in (1993) Supp. (3) SCC 168 and K. Vinod Kumar Vs. S. Palanisany and rs. reported in (2003) 10 SCC 681 whereby it was contended that the selection committee, in absence of specified procedure, can formulate their own procedure. Gopinath Dash and Ors. reported in (2005) 13 SCC 495 , Rekha Chaturvedi (Smt) Vs. University of Rajasthan and Ors. reported in (1993) Supp. (3) SCC 168 and K. Vinod Kumar Vs. S. Palanisany and rs. reported in (2003) 10 SCC 681 whereby it was contended that the selection committee, in absence of specified procedure, can formulate their own procedure. As per the settled position of law, it was submitted in the light of above judgments, merit cannot be waived by the Hon’ble Court while exercising jurisdiction under Article 226 of the Constitution of India. The selection process, etc. are policy decisions and cannot be interfered with. 7. In the light of above judgments and placing reliance on Section 24 of the National Institute of Technology Act, 2017, (in short ’Act of 2017’), learned Senior Counsel submitted that the Selection Committee has carried out their own procedure, made recommendations to the Board and after due deliberations, most suitable candidate were appointed and therefore, the petition filed cannot be entertained, that too at a belated stage as on the said seats recruitment have already taken place and more than 8 years have passed. 8. Learned counsel for the respondents No.5 & 7, Mr. Saransh Saini, submitted that the person selected from Senior Assistant/Accountant category are already on the job, were selected by the Board of Approval after due consideration, their consent letters were also taken and they have been working ever since. He has relied upon judgment of Hon’ble Apex Court in the case of Rekha Chaturvedi (Smt) Vs. University of Rajasthan and Ors. reported in (1993) Supp. (3) SCC 168 and has submitted that Judicial review of recruitment at belated stage after lapse of 8 years cannot be initiated even if the appointment was illegal. 9. Heard the arguments of the counsels for respective parties, scanned the records of the writ petition and the amended petition, and considered the judgment cited at Bar. 10. In the case in hand, it is an admitted fact that on 10.12.2013 one advertisement was issued wherein a corrigendum was also issued at a later date for various non teaching posts. One of such posts was of Junior Assistant/Stenographer specified at serial No.8 of the said advertisement and another post was of Superintendent Accountant, specified at serial No.7. 10. In the case in hand, it is an admitted fact that on 10.12.2013 one advertisement was issued wherein a corrigendum was also issued at a later date for various non teaching posts. One of such posts was of Junior Assistant/Stenographer specified at serial No.8 of the said advertisement and another post was of Superintendent Accountant, specified at serial No.7. Admittedly, for the post of Accountant the qualification was Master’s Degree from a recognized University and the minimum qualification for Junior Assistant was Senior Secondary with a typing speed of desired standards. The present petitioner has field the form under the OBC category qua the post of Junior Assistant/Stenographer. 11. It is observed that the advertisement specifically reflected the terms and conditions for the recruitment process, particularly in general instructions Clause (c) and (o) which are reproduced below:- "c) Candidates who wish to apply for more than one posts should apply separately for each post in the prescribed manner. (d) Candidates with multiple discipline specialization may also be considered. (e) After submitting the Online Recruitment Application, the candidates are required to take a print out of the finally submitted Online Recruitment Application. The eligible candidates have to bring the hard copy of the submitted online application, if called for examination/interview. (f) In case of large number of application received, the Institute has right to set higher norms than the minimum while short listing, Shortlisting may be done based on academic performance and quality/quantity of relevant experience or alimentation test based on multiple choice questions (MCQs) approach may also be conducted. The list of short listed candidates will be displayed on the Institute website approximately within one month from the closing date for submission of online application.. (g) All qualifications, experience and preferred age limit will be considered as on the closing date, i.e. the last date of the submission of application form. (h) Persons serving in Govt./Semi Govt./PSUs/Universities/ Educational Institutions are required to submit NOC at the time of appearing for interview. (I) Relevant Cate/Category certificates (enclosed Performa ’A’) are required to be submitted at the time of examination/ interview. No other certificate will be accepted as a sufficient proof. (h) Persons serving in Govt./Semi Govt./PSUs/Universities/ Educational Institutions are required to submit NOC at the time of appearing for interview. (I) Relevant Cate/Category certificates (enclosed Performa ’A’) are required to be submitted at the time of examination/ interview. No other certificate will be accepted as a sufficient proof. (j) The persons with disability (PWD) shall be required to submit the Medical Certificate in the (enclosed Performa ’B’) issued by the competent medical authorities for the purpose of employment as per Government of India norms at the time of examination/ interview. Persons suffering from not less than 40% of the disability shall only be eligible for the benefit of reservation. (k) Ex-servicemen are required to submit a certificate (enclosed Performa ’C’) at the time of examination/interview. (l) Original documents with one set of self attested copies will have to be produced at the time of interview for verification. (m) The applicants are required to visit the Institute website regularly. The names of candidates eligible for further participation in the selection process shall be uploaded on Institute website. (n) Contact Details : Registrar MNIT, JLN Marg, Jaipur Phone Phone (0141- 2529078) (o) The Institute has the right to increase/decrease the number of vacancies advertised." 12. That after due selection process, the Board, vide Annexure-R/2, selected two persons in the OBC category but did not select the petitioner who had secured 45 marks and was standing at 3rd number. As per the Selection Committee , which comprised of six persons, the petitioner was not selected as he was not found suitable. As the said vacant post was there, on recommendation of the Selection Committee , on 21.03.2014, a decision was taken by the Board of Approval whereby they offered Ministerial Lower Post position to candidates/applicants who applied for Ministerial Higher Posts but were found unfit for the same. In this regard, in April, 2014, selection in Lower Post was made from applicants of Higher Post. 13. The contention of the petitioner that he secured 45 marks and stood 3rd in the OBC category and that he should have been given selection and appointment in the said category on the premise that there was no minimum eligibility of 50 marks as per the advertisement and further that no other persons from the senior post could have been selected in terms of clause (c), appears to be just and proper. The advertisement issued by the respondents dated 10.12.2013 categorically specifies in clause (c) that if any candidate who wish to apply for more than one post should apply separately in the prescribed manner. Respondents No.4 to 8 have not fulfilled the said condition and still Selection Committee and the Board of Approval had gone dehors the advertisement and selected and granted appointment to the candidates who applied for the post of Superintendent/Accountant with different qualifications. Secondly, the reliance placed by respondents on clause 3.1.12 nowhere states that new set of procedure or change in selection method can take place. It is an admitted case that under the OBC category, out of the given applicants for the post of Junior Assistant/Stenographer, on merit, the petitioner has secured 45 marks and was placed at Serial No.3 and therefore, he should have been selected. Nowhere in the advertisement discretion has been given to the Selection Committee to comment that any applicant was not found suitable, specifically when in aggregate the petitioner has secured good marks because of which he was standing at serial No.3 in the said category. The Hon’ble Apex Court judgment cited by the petitioner categorically confirm the said contention whereby the Hon’ble Apex Court has held that change in norms/ change in rules of the game, post advertisement and after recruitment/selection process has begun, is impermissible and illegal. In this regard para 5 and 8 of the (supra) judgment are reproduced:- "5. On behalf of the appellants, reliance has been placed upon judgments rendered by the learned Single Judge on three occasions. Their main contention is that the learned Single Judge had taken a correct view in law that once advertisement had been issued and recruitment process had begun by asking for separate applications for the two different posts having different qualifications, the State Government as well as the Commission erred in changing the qualification midway through issuance of a letter on the ground that it was only to clarify the actual position pursuant to a query made by the commission. It was pointed out that the relevant 1971 Rules which were the basis for the advertisement were amended only subsequently on 9-12-2011 and as per law settled by a catena of decisions by this Court, the Rules which existed at the time of issuance of advertisement shall govern the recruitment process and not the subsequently amended Rules. 8. It was pointed out that the relevant 1971 Rules which were the basis for the advertisement were amended only subsequently on 9-12-2011 and as per law settled by a catena of decisions by this Court, the Rules which existed at the time of issuance of advertisement shall govern the recruitment process and not the subsequently amended Rules. 8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and have perused the judgment of the learned Single Judge and the impugned judgment of the Division Bench. In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by the learned Single Judge that recruitment porcess must be completed as per terms and conditions in the advertisement and as per Rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether BPED and DPED qualifications are equivalent or superior to CPED qualification but such exercise cannot help the cause of the respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of advertisement and as per Rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the Rules which were suitably amended only later in 2011. In such a situation, factual justifications cannot change the legal position that the respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment tot he post of PTI Gr. III who held other qualifications but not the qualification of CPED. Such candidates had not even submitted separate OMR application from the appointment to the post of PTI Gr. III which was essential as per the terms of advertisement." 14. The judgment relied upon by the respondents are distinguishable on the ground that, in the case in hand, the Selection Committee as well as Board of Approval has acted contrary to the advertisement. They have created their own rules which were never prescribed in the advertisement qua consideration of the candidates who had not applied separately. Further, the Selection Committee has given a cut off 50 marks which was never specified in the advertisement. They have created their own rules which were never prescribed in the advertisement qua consideration of the candidates who had not applied separately. Further, the Selection Committee has given a cut off 50 marks which was never specified in the advertisement. No power/authority was given to the respondents for holding candidates suitable or not suitable at the stage of interview, that too without any justification. It is not in dispute that the that the selection committee can devise their own procedure which cannot be doubted, as held by Hon’ble Apex Court in the case of K. Vinod Kumar (supra), but at the same time, if they rely upon the provisions of Section 24 of the Act of 2007, there is a mandate that the appointment shall be made in accordance with the procedure laid down in the statutes. In the present case, as per the statute, advertisement was issued and rules of the game and norms were decided. If any candidate was to be considered it was only when he had applied separately under the respective category. In the case in hand respondent No.4 to 8 never applied separately in the advertisement qua the post of Junior Assistant/Stenographer. 15. Further, the norms of 50 marks or ’not found suitable’ was not mentioned in the advertisement. Rather, stage wise procedure was mentioned in Examination Pattern for Screening Test (document marked as Annexure-5). The stages mentioned were subjective test, trade test, experience and interview. To qualify for interview, a candidate had to clear all previous stages with minimum 50% marks. The petitioner did qualify for interview, and even though he scored only 3 marks in the interview, he stood at serial No.3 in the OBC category. The discretion exercised by the Selection Committee was dehors the advertisement as no procedure was laid down in the advertisement qua the same. The Selection Committee can definitely devise its own procedure but it has to be done before the advertisement and it and cannot deviate from the terms and conditions of the advertisement. For the said reasons the judgment cited above by the respondents are distinguishable. 16. The Selection Committee can definitely devise its own procedure but it has to be done before the advertisement and it and cannot deviate from the terms and conditions of the advertisement. For the said reasons the judgment cited above by the respondents are distinguishable. 16. The reliance placed upon regulation 3.1.12 and submission of the respondent counsels that no malafide was alleged against the Selection Committee, and that the Board of Approval was separate agency cannot be given weightage and consideration, for the reasons that once rules of game are defined in the advertisement and norms are prescribed, the same cannot be changed later on, otherwise there would remain no sanctity of the advertisement. The petitioner was the most suitable candidate as per the norms of the advertisement, the said fact can also be argued by placing reliance on Annexure R/2 whereby an applicant placed at serial No.20, Yuvraj Singh Rathore, was found suitable even though he secured only two marks in the interview, because he secured 59 marks in aggregate. Therefore, in the case in hand, prior to interview, if the petitioner was appropriately selected under the OBC category then merely because he has secured three marks in the interview and has secured less than 50 marks, which were never prescribed in the advertisement, he cannot be ousted and held to be not found suitable. Further, the remark is stigmatic and dehors the advertisement. The said norm was never laid down by the Selection Committee as required under Section 24 of the Act of 2007. 17. For the reasons stated above and for the interim protection granted by this Court dated 02.07.2014, this Court deems it appropriate to allow the writ petition of the petitioner by setting aside the order dated 27.02.2019. This Court directs the respondents to appoint the petitioner on the post of Junior Assistant against the third vacancy reserved for OBC category w.e.f. the date from which any of the successful candidate has been appointed at the post of Junior Assistant with all consequential benefits as the petitioner had first right over the said post. This Court directs the respondents to appoint the petitioner on the post of Junior Assistant against the third vacancy reserved for OBC category w.e.f. the date from which any of the successful candidate has been appointed at the post of Junior Assistant with all consequential benefits as the petitioner had first right over the said post. In consequence to selection and appointment of the petitioner, if any of the respondents or any other person is ousted, the same will not create any equity in his/her favour as the interim order dated 02.07.2014 was very clear that the appointment of respondents No.4 to 8 was subject to outcome of the writ petition. 18. For the said reasons, the writ petition is allowed. It is further recommended to the Selection Committee as well as Board of Approval that if the advertisements are issued, rules of the games/norms are decided in advance, the same will constitute the laid out procedure and the same cannot be altered/changed later on as such an exercise is impermissible and shakes the confidence of the people applying for selection and such action is against the mandate under Article 309 of the Constitution of India. 19. The writ petition is allowed. All pending applications stand disposed of.