A. Arumughaswamy, Member (J))1. The applicant has filed this OA assailing the action of the first respondent in selecting respondents 2 to 9 contrary to the advertisement and, therefore, the selection list communicated to the respondents 2 to 9 dated 06.9.2012 of the 1st respondent is alleged to be illegal. Hence he seeks the following relief:-
'To set aside the selection list dated 6.9.2012 in so far as the selection of respondents 2 to 9 and to consequently direct the respondents to consider and appoint the applicants as Store Keepers on and from the date the other selected candidates were appointed based on the advertisement, written test dated 26.9.2010 and the interview on 4th and 5th September 2012 with back wages, continuity of service and other attendant benefits.'
2. The facts of the case as stated by the applicant are that JIPMER issued an advertisement in the media inviting applications for 23 posts of Storekeeper. The 23 vacancies were distributed over various categories, namely, 13 posts for UR, 6 for OBC, 3 for SC and 1 post for ST with a note that ‘number of vacancies are subject to change.’ The applicant participated in the selection process and got selected under UR category and she joined the duty as Storekeeper on 4.3.2011. They worked in the said capacity until 13.8.2012. While so, on 14.8.2012 termination order was issued on the basis of the Order passed in OA 1564/2010. Thereafter, JIPMER conducted fresh interview for Storekeeper on 4th and 5th of September 2012 fixing maximum interview marks as 15%. The remaining 85% of mark was derived from marks obtained in written exam held on 26.9.2010. Accordingly new selection list dated 06.9.2012 for Storekeepers was displayed on 7.9.2012 in which the applicant was not selected. Hence she has filed this OA seeking the above mentioned relief.
3. The contention of the applicant is that as per advertisement out of the 13 UR vacancies 1 was reserved for Sportsman and 3 for Ex-serviceman on horizontal reservation. The upper age limit for this post was 30 years as on 30.11.2009 and the relaxation for upper age limit as per advertisement was OBC-3 years, SC-5 years, ST-5 years, Sports Person-5 years, Ex-servicemen-length of Military service plus 3 years. As per advertisement under Vertical reservation UR category 14 candidates, OBC category 5 candidates and SC category 3 candidates were selected. Under horizontal reservation 1 meritorious Sports Person (1-OBC) candidate and 3 Ex-servicemen (UR-1, OBC-1, SC-1) candidates were selected and the applicant was selected under UR category. Whereas, in the new selection, JIPMER has given both vertical and horizontal reservation for Ex-servicemen (8 nos.). But as per advertisement they have mentioned only horizontal reservation for Ex-servicemen (3 nos.) and also in the previous selection list only 3 Ex-servicemen were selected as per horizontal reservation. She would further contend that this Tribunal in OA 1564/2010 had directed JIPMER to conduct fresh interview with only 15% for viva voce on the sole ground that the interview marks allotted was contrary to the decisions of the Hon'ble Supreme Court. Thus JIPMER had to redo the exercise of interview alone. However, JIPMER has made a modification in the Ex-servicemen reservation quota also, due to which the applicant was deprived of the post of Storekeeper in which post she was already working prior to the termination.
4. The grounds taken by the applicant are that when upper age limit is fixed for Storekeeper post as 30 years as on 30.11.2009, unless the candidates came within the upper age limit as per the advertisement they could not be accommodated in the UR category. In this case, the respondents who are over aged and would not come within the zone of consideration but for age relaxation available for ex-servicemen are accommodated in the UR category, which is illegal. Out of the 8 contesting respondents only 3 persons are eligible to be accommodated in the Ex-servicemen category based on the maximum marks scored in the written test and interview put together if they come within the relaxation of upper age limit mentioned in the advertisement. However, the 1st respondent had accommodated 5 more Ex-servicemen in the UR category which is illegal. The age relaxation is given only for Ex-servicemen category. The candidates accommodated in OBC, SC based on availment of age relaxation were placed in the respective category even if they have scored more marks. That being the case, the 1st respondent could not arbitrarily or unilaterally accommodate the Ex-servicemen in the UR quota when they have availed age relaxation.
5. The respondents in the reply contest the claim of the applicant on the ground that in compliance of the order passed in OA 1564/2010 dated 27.7.2012, the 1st respondent conducted a fresh interview on 04.9.2012 and 05.9.2012. In that altogether 73 candidates appeared for the interview. An overall merit list was drawn based on the marks obtained in written test (85% marks and interview (15 marks). The 7th respondent herein being a SC candidate and also an Ex-servicemen topped the overall merit list and the 2nd respondent's name figured at Sl.No.4 in the overall merit list with the total score of 48.44 and hence they have been considered in the UR category though they are Ex-servicemen. The 8th respondent who is an OBC Ex-serviceman figured at Sl.No.6 in the overall merit list with total score of 48.05 and hence his name was considered under UR category. The 3rd respondent who is an Ex-servicemen figured at Sl.No.9 of the overall merit list and hence his name was considered under UR category. The 4th respondent who is an OBC Ex-serviceman figured at Sl.No.17 of the overall merit list with the total score of 44.16. 14 persons were selected and appointed under the UR category and the last person who was considered under the Open Category secured a total score of 43.98 whereas the applicant secured 43.23 only which is much below the score of the last candidate who was selected in the UR category. Though the respondents 2,3,4,7 and 8 are Ex-servicemen, they are all accommodated in UR category based on the overall merit list as they were not given any relaxation in the selection process or criteria except their age. Hence consideration of their names in open category is in accordance with law laid down by the Hon'ble Apex Court in various judgments and also in terms of Rule 5 of the Ex-servicemen (Re-employment in Central Civil Services & Posts) Rules, 1979. After accommodating the meritorious candidates in the Open category irrespective of their own category based on the overall score secured, the names of the respondents 5,6 and 9 figured in the merit list prepared in respect of Ex-servicemen category and hence they were all appointed under the said category and there is no illegality in the action of the 1st respondent in appointing these respondents.
6. Further, with regard to the contention of the applicant that due to applying both vertical and horizontal reservation for Ex-servicemen in the new selection list, she was deprived the post of Storekeeper even though she has scored good marks in the written examination and interview, it is submitted that as per advertisement 3 vacancies were notified for Ex-servicemen on horizontal reservation, as per reservation rules. As per special provisions to Ex-servicemen, Ex-servicemen are eligible to be considered for appointment against the total vacancies on vertical reservation basis depending upon their own category (caste) as well as the vacancies reserved for Ex-servicemen on horizontal reservation basis subject to fulfilling conditions of eligibility for being considered as Ex-servicemen for reserved vacancies but both subject to merit. The respondents at 7, 2, 8, 3 and 4 were ranked at Sl.No.1, 4, 6, 9 and 17 respectively in the overall merit list and they have scored more marks both in the written test and interview, hence they have been selected and shown against the UR category. Every Ex-serviceman who was eligible for age relaxation for applying to any Grade C posts could also compete with any other candidates from the open market whether reserved for Ex-serviceman or not. As per rule a selected Ex-serviceman would be fitted against his own category (UR) and also in the Ex-servicemen category. The reservation for Ex-servicemen has been implemented as per rules and the same was upheld by the Hon'ble Supreme Court of India in Jitendra Kumar Singh and Anr. Vs. State of UP and Ors. (AIR 2010 SC 1851) (Annexure-5), Ravinder Kumar Vs. State of Haryana and Others (2010 (5) SCC 136 (Annexure 6) and CAT Madras in TA 72/2009 (Annexure-7). Accordingly they pray for dismissal of the OA.
7. Heard the learned counsel for the applicant and the respondents and perused the pleadings and materials produced by the rival parties. Learned counsel for the applicant Mr.C.K.Chandrasekar would submit that in the present selection the 1st respondent had applied both vertical and horizontal reservation for 8 Ex-servicemen and due to the wrong implementation of reservation procedure, the applicant was not selected for the Storekeeper post even though she has scored good marks. Therefore, the selection procedure by the 1st respondent with regard to accommodating Ex-servicemen in UR category is illegal, arbitrary and violative of Articles. 8. Per contra, learned counsel for the respondent would submit that the 1st respondent have prepared the overall merit list in respect of all the candidates who appeared for interview on 4th and 5th September 2012 and made selection purely based on the overall score secured by each candidate and in that even the reserved category candidates who scored higher marks than the open category candidates have been considered in Unreserved Open category in terms of the law laid down by the Apex Court in various judgments from time to time and the appointment order was issued accordingly. In terms of the above rule position, as the selection process is one and the same for all candidates, the Ex-servicemen securing higher scores than the open category candidates are eligible and entitled to be considered as Unreserved Open category candidates. Hence the selection and appointment of these respondents are very much in order. The applicant having participated in the whole selection process is estopped from questioning the clarity of notification or advertisement once she is declared unsuccessful. With regard to the selection of Storekeepers particularly to the Ex-servicemen category, it is as per relevant rules in force governing the recruitment of Ex-servicemen to the Group C posts. Therefore, the reservation procedure for Ex-servicemen was properly followed in the selection process and accordingly rejected the contention of the applicant.
9. It is not in dispute that the applicant was appointed to the post of Storekeeper on 4.3.2011 and she continued in the post until 13.8.2012. The services of the applicant was terminated by order dated 14.8.2012 on the basis of the order passed in OA 1564/2010 dated 27.7.2012 by this Tribunal. On perusal of the material on record it is seen that one Mr.Zaguir Qussene had filed OA 1564/2010 seeking to set aside the select list dated 19.11.2010 of the 1st respondent and to consequently direct the respondents to conduct fresh interview and make selection on merit with due regard to performance in the written examination. This Tribunal, based on the various Judgments of the Hon'ble Supreme Court had allowed the OA by its Order dated 27.7.2012 with the following observations:-
'8. The question of earmarking more marks to the interview was gone into by the Hon'ble Supreme Court in the cases cited supra.
9. In the case Ashok Kumar Yadav and Ors. (Supra), a Four Judge Bench of the Hon'ble Supreme Court in para 26 held as under:-
‘We may now, in the background of this discussion proceed to consider whether the allocation of as high a percentage of marks as 33.3 per cent in case of ex-service officers and 22.2 per cent in case of other candidates, for the viva voce test renders the selection process arbitrary. So far as ex-service officers are concerned, there can be no doubt that the percentage of marks allocated for the viva voce test in their case is unduly high and it does suffer from the vice of arbitrariness. It has been pointed out by the Division Bench in a fairly elaborate discussion that so far as the present selections in the category of ex-service officers are concerned, the spread of marks in the viva voce test was inordinately high compared to the spread of marks in the written examination. The minimum marks required to be obtained in the written examination for eligibility for the viva voce test are 180 and as against these minimum 180 marks, the highest marks obtained in the written examination in the category of ex-service officers were 270, the spread of marks in the written examination thus being only 90 marks which works out to a ratio of 22.2 per cent. But when we turn to the marks obtained in the viva voce test, we find that in case of ex-service officers the lowest marks obtained were 20 while the highest marks secured were 171 and the spread of marks in the viva voce test was thus as wide as 151 in a total of 200 marks, which worked out to an inordinately high percentage of 76. The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raced to the top most position in the merit list by an inordinately high marking in the viva voce test. It is, therefore, obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness, and in order to diminish, if not eliminate the risk of arbitrariness, this percentage need to be reduced. But while considering what percentage of marks may legitimately be allocated for the viva voce test without incurring the reproach of arbitrariness it must be remembers that ex-service officers would ordinarily be middle age persons of mature personality and it would be hard on them at that age to go through a long written examination involving eight subjects and hence it would not be unfair to require them to go through a shorter written examination in only 5 subjects and submit to a viva voce test carrying a higher percentage of marks than that might be prescribed in case of younger candidates. The personalities of these ex-service officers being fully matured and developed, it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva voce test and therefore, in their case, the viva voce test may be accorded relatively greater weight. But in any event the marks allocate for the viva voce test cannot be as high as 33.3. per cent.'
10. In the above case, the Hon'ble Supreme Court has held high percentage of marks for viva voce as 33.3 per cent opens the door wide for arbitrariness, and in order to diminish, if not eliminate the risk of arbitrariness, this percentage need to be reduced. Therefore, in the facts of this case, we are fully convinced that action of the respondents in allocating 50% marks for interview will be totally against the law laid down by the Hon'ble Supreme Court.
11. In Mohinder Sain Garg (supra) the Hon'ble Supreme Court has held in para 33 as under:
'.... There could be no gain saying that viva voce test cannot be totally dispensed with, but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more that 15% of the total marks in the selection of candidates fresh from college /school for public employment by direct recruitment where the rules provided for a composite process of selection namely written examination and interviews.'
12. The Hon'ble Supreme Court in the case of Director General I.C.A.R. & Ors. (supra) has held that 50% allocation was highly excessive and totally unjustified, particularly when fact that interview would also be held to evaluate suitability of candidate for the said post was not disclosed to the respondent candidate.
13. In view of the above rulings of the Hon'ble Supreme Court, it is clear that the Hon'ble Supreme Court in more than one occasion has held that fixing high percentage of marks for the interview is not justified and the same is liable to be struck down as unconstitutionally invalid.
14. In the instant case, we also find that three selected ex-servicemen were given more marks in the interview than the applicant. The selection of the successful candidates was possible because of awarding of higher marks in the interview than the applicant. The action of the respondents is against the law laid down by the Hon'ble Supreme Court. Therefore, eventhough the fixing of 50% marks for interview has got the approval of the competent authority, we are of the view that the action of the respondents in fixing 50% marks for interview, cannot be sustained for the principles enunciated by the various Apex Court judgments cited supra.
15. ........ Since the action of the first respondent in fixing 50% marks for interview is the against the law laid down by the Hon'ble Supreme Court, we are of the opinion that the entire selection has to be held as unreasonable and liable to be set aside. Accordingly, we set aside the selection of Store Keepers made consequent to the notification annex.A/6 to the OA. The 1st respondent is directed to conduct the interview for the post of Store Keeper afresh and allocate reasonable marks to the interview as per the law laid down by the Hon'ble Supreme Court cited supra.
From the above it is clear that in terms of the law laid down by the Hon'ble Supreme Court, this Tribunal has passed Orders in OA 1564/2010. Thereafter, JIPMER had conducted fresh interview for Store Keeper on 4th and 5th of September 2012, wherein the total marks d
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ivided between written test and personal interview in the ratio of 50:50 initially were converted to 85% and fresh interview marks were fixed as 15% in accordance with the direction of this Tribunal in the above OA. 10.Under the above circumstances, the question of earmarking more marks to the interview had already been answered by the Hon'ble Supreme Court in the cases cited supra and we find that there is no scope to revisit the question again as it is a settled law and there is no reason to take a different view in this OA. 11.The applicant in this OA has not challenged the dismissal order or reduction of interview marks to 15%. she has challenged the selection of the respondents 2 to 9. On perusal of the reply statement, it is seen that as per the special provision for appointment of Ex-servicemen (Re-employment in Central Civil Services & Posts) Rules, 1979 there is no bar in selecting Ex-servicemen in the UR category provided they secure higher scores than the open category candidates. Since the respondents 2 to 9 have scored higher marks than the applicant, they have been selected in the UR category. Therefore, consideration of the names of Ex-servicemen in open category is in accordance with law. In the absence of any details regarding age relaxation and a reference to the relevant rule under which no appointment in the UR category could be made of such ex-servicemen even if they score higher marks, the relief sought by the applicant cannot be considered. The applicant after having participated in the entire selection process and having failed to qualify in the said selection, could not now turn back and question the clarity of the notification or advertisement. Hence, we are of the view that the applicant could in no way be aggrieved by the action of the 1st respondents in selecting respondents 2 to 9 as the selection was in order and accordingly, we find all the contentions raised in the OA devoid of merits and are liable to be dismissed. 12.Accordingly, the OA is dismissed. No order as to costs.