Telangana High Court
V. Srinivas vs The Union Of India on 21 December, 2023
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 18698 of 2023
ORDER:
In this writ petition, the petitioner is seeking a writ of mandamus declaring the list of candidates shortlisted for appearing in the selection meeting for the post of Director (Personnel) in the Respondent No.5 organization as reflected in the letter bearing No.7/27/2022-PESB, dated 30.06.2023 issued by the Respondents No.2 to 4, as illegal, arbitrary, unconstitutional and in violation of Articles 14 and 21 of the Constitution of India and consequently to set aside the same and to direct the Respondents No.2 to 4 to prepare a fresh list of candidates for appearing in the selection meeting by including the name of the Petitioner in it and also to reschedule the selection meeting and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the respondent No.5 is a Central Public Sector Enterprise, headquartered at Hyderabad and the respondent No.2 is the high powered body constituted by the respondent No.1 for the purpose of evolving managerial policy for Central 2 TMD,J W.P.No.18698 of 2023 Public Sector Enterprises and to advise the respondent No.1 in respect of the appointments to top managerial positions. The post of Director (Personnel) in the respondent No.5 organization fell vacant on 01.08.2020 and the respondent No.2 issued an Advertisement No.101/2022, dated 30.08.2022 calling for application from eligible candidates. Para 3 of the Advertisement provides for educational qualifications, while Para 4 provides the required experience, which should be atleast five years of the cumulative experience during the last ten years in various aspects of HR/Personnel Management/Industrial Relations in an organization of repute and Para 5 provides for the pay scale in which the applicant must be in order to be eligible. The petitioner was working as a General Manager (Personnel) in the respondent No.5 organization and was thus eligible for applying to the said post and therefore, he claims to have submitted his application online on 15.03.2023 and the same was forwarded to the respondent No.2 on 16.03.2023. According to the information furnished by the respondent No.1, a total of 12 applicants will be shortlisted, out of which 6 applicants will be from the same Central Public Sector Enterprise or its subsidiary and thereafter, the respondent No.2 was required to conduct a 3 TMD,J W.P.No.18698 of 2023 selection meeting in consultation with the Secretary of the concerned Ministry/Department and an interview of the shortlisted candidates was to be conducted during the selection meeting and ultimately, one name was to be sent by the respondent No.2 to the concerned Ministry for its consideration.
3. The learned counsel for the petitioner relied upon the guidelines regarding Board Level Appointments in Central Public Sector Enterprises in support of his contentions. It is submitted that the petitioner was eagerly awaiting the result of the shortlisting exercise, but the petitioner's name was not considered and on 11.07.2023, the petitioner through interactions with his colleagues came to know that some of the applicants from within the respondent No.5 organization had received a letter from the respondent No.2 intimating them about the selection meeting. Therefore, he made certain enquiries and was shocked to know that the petitioner's name was not in the list of shortlisted candidates, but there were other candidates who according to the petitioner, did not qualify for the said post. He thereafter, addressed a letter on 12.07.2023 to the respondent No.2 pointing out the infirmities in the shortlisting of the candidates and requested that the said 4 TMD,J W.P.No.18698 of 2023 letter be withdrawn and a fresh list including his name be issued. Since there was no response from the respondent No.2, the petitioner has filed the present writ petition.
4. This Court, vide Interim Orders dated 14.07.2023 in I.A.No.1 of 2023, granted interim suspension of the letter bearing No.7/27/2022-PESB, dated 30.06.2023, issued by the respondents No.2 to 4 and the respondents No.2 to 4 were restrained from taking any further steps pursuant to the said letter, including conducting the selection meeting on 14.07.2023 till 21.07.2023. The learned Deputy Solicitor General appearing for respondents 1 to 4 and learned Standing Counsel appearing for respondent No.5 were directed to orally communicate the said order to the respondents No.2 to 4 as the selection meeting was stated to be held on the said day i.e., on 14.07.2023 at 03.30 p.m., itself. The matter then came up for hearing on 21.07.2023 wherein it was informed to the Court by the learned Deputy Solicitor General Counsel appearing for the respondents No.1 to 4 that before the interim order could be communicated to the respondent No.2, the interviews and selection meeting were already completed and sought time to file counter affidavit on behalf of the respondents. 5
TMD,J W.P.No.18698 of 2023
5. Thereafter, the Learned Deputy Solicitor General filed counter affidavit on behalf of respondents No.1 to 4. Learned Standing Counsel entered appearance on behalf of respondent No.5. The matter was heard at length on merits.
6. Learned counsel for the petitioner reiterated the submissions made in the writ affidavit and submitted that the petitioner had necessary educational qualifications as well as relevant experience to be considered for appointment, while the respondents No.6 to 8 did not possess the necessary experience/qualifications and therefore, they could not have been shortlisted.
7. Learned Deputy Solicitor General appearing for the respondents No.1 to 4, has relied upon the averments made in the counter affidavit and submitted that after receipt of applications from the eligible candidates in response to the Advertisement No.101/2022, the call letters were issued by the respondents to the respective offices of the eligible candidates informing them about the date and time of the selection meeting. It is submitted that there are a total of 12 slots which are available for consideration of selection and for short-listing, 6 TMD,J W.P.No.18698 of 2023 out of which 6 slots were reserved for internal candidates of the respective department. It is submitted that there was only one vacancy for which a total of 23 candidates had applied. It is submitted that the petitioner is at 16th position in the seniority of eligible candidates of his organization and due to the limited slots, the petitioner was not shortlisted and therefore, the petitioner was not informed of the selection meeting and there is no provision or procedure contemplated to communicate the same also to all such candidates who are not shortlisted. It is submitted that the shortlisting of Board Level Selection was done by the respondents i.e., PESB as per the prescribed procedure and guidelines which are being followed from time to time and for the post of Director (HR/Personnel), apart from experience as given in the job description, the criteria spelt out in the internal guidelines of the PESB dated 04.02.2022 was strictly followed. It is submitted that the said guidelines have been duly communicated to all the Ministry/Departments of the Government of India and the CPSEs vide proceedings dated 05.08.2022 and the same are also available in the PESB website. It is submitted that PESB has divided the candidates for HR/Personnel post into the following three categories: 7
TMD,J W.P.No.18698 of 2023 Category III: Applicants having experience as functional head of projects/plants having direct responsibility of atleast 20% of the workforce;
Category II: Applicants with minimum 2 years in HR/IR/Pers+3 years as functional head of projects/plants having direct responsibility of 1000 workforce;
Category I: Priority to applicants with 5 years experience during the last 10 years in HR/IR/Personnel.
8. It is submitted that for the post of Director (HR/Personnel), the endeavor is not only to have the Core HR experience as managerial requirement but also the candidates having sufficient experience in senior position and having dealt with human resources in their respective domain who are made eligible as Category-III and Category-II. However, as per guidelines dated 04.02.2022, the candidates for Category-I are given preference in shortlisting followed by Category-II candidates and Category-III candidates. Therefore, the PESB has endeavored to balance the need where not only Core HR officers are considered for shortlisting, but also the officers from other streams who have worked sufficiently at a senior position are also considered. It is submitted that the respondents No.6 to 8 were thus, shortlisted based on the guidelines issued on 04.02.2022 and there is no arbitrariness, since the respondents 8 TMD,J W.P.No.18698 of 2023 No.6 to 8 meet the mandatory educational qualifications required for the post of Director (Personnel), NMDC. It is submitted that the petitioner was not in the eligible zone of consideration as the officers from the same Category-I senior to him were shortlisted for the selection meeting to be held on 14.07.2023. It is submitted that the respondent No.2 had to commence the interviews at 03.30 p.m., on 14.07.2023 within the closed doors and after the commencement of selection process, no one was permitted to enter into the Committee room in view of the security reasons and by the time, the interim orders were communicated by the office of Deputy Solicitor General of India were to be informed, the process of interview had already been completed and therefore, the interviewers have been concluded, but the results were kept in abeyance until further orders in compliance with the interim orders of this Court.
9. As regards the guidelines which are available on the website of DoPT indicating the process of selection for appointment of Board Level Appointments of Central Public Sector Enterprises. It is submitted that these guidelines were published way back in the year 2017 and since then almost the 9 TMD,J W.P.No.18698 of 2023 same procedure has been followed from time to time except for minor changes. The respondents therefore, prayed for the vacation of interim order and to permit them to complete the selection process in accordance with the guidelines.
10. Learned counsel for the petitioner also filed reply affidavit stating that the Advertisement dated 30.08.2022 unambiguously referred to only one experience criteria, i.e., five years of cumulative experience during the last ten years in HR/Personnel Management/Industrial Relations, but there is no whisper regarding the three Categories as laid down in the purported internal meeting dated 04.02.2022, nor was there any reference to that internal meeting at all. It is submitted that there can be no deviation from the eligibility criteria and procedure for selection as mentioned in the advertisement for which the vacant post was notified. It is further submitted that respondent No.2 was guided by a set of guidelines issued by it, which has been compiled as "Guidelines Regarding Board Level Appointments in Central Public Sector Enterprises" and as per the updated version as uploaded on 23.09.2022 in the respondent No.2's website there is no other criteria of experience. Therefore, according to him, the criteria fixed in the 10 TMD,J W.P.No.18698 of 2023 internal meeting on 04.02.2022, could not have any binding nature.
11. Learned counsel further submitted that the cut-off date for deciding the eligibility of a candidate is the date of occurrence of the vacancy, which in the present case is 01.08.2020 and by then, the criteria fixed in the later meeting dated 04.02.2022 were not in vogue and therefore, no reliance could be placed on the said internal meeting minutes dated 04.02.2022. Therefore, he submitted that the respondents should be directed to conduct the interview strictly in accordance with the guidelines which were in force as on the date of the vacancy i.e., on 01.08.2020 and consider the petitioner also for the said vacancy, since he possessed necessary educational qualifications as well as experience criteria.
12. Learned Standing Counsel appearing for the NMDC also reiterated the contentions raised by the learned counsel for the respondents No.1 to 4.
13. Learned counsel for the petitioner relied upon the following judgments:11
TMD,J W.P.No.18698 of 2023
1. Bedanga Talukdar Vs. Saifudaullah Khan and Others 1;
2. Sanay K.Dixit and Others Vs. State of Uttar Pradesh and Others 2;
3. P.M.Latha and Another Vs. State of Kerala and Others 3;
4. Indresh Kumar Mishra and Others Vs. State of Jharkhand and Others 4;
5. V.K.Sehgal Vs. Union of India 5;
6. Subrata Chakravarty Vs. Union of India and Others 6;
7. Dr.Amarjit Singh Ahluwalia Vs. The State of Punjab and Others 7;
14. Having regard to the rival contentions and the material on record, this Court finds that the Government of India i.e., respondent No.2 has issued the Advertisement No.101/2022, dated 30.08.2022 for the post of Director (Personnel) for NMDC Limited for a vacancy which has arisen as 1 (2011) 12 SCC 85 2 (2019) 17 SCC 373 3 (2003) 3 SCC 541 4 (2022) 12 SCC 42 5 1996 (37) DRJ 606 6 2016 SCC Online Cal 6525 7 (1975) 3 SCC 503 12 TMD,J W.P.No.18698 of 2023 on 01.08.2020. The qualifications and the experience mentioned are as under:
3. Qualification: The applicant should be a graduate with good academic record from a recognized University/Institution. Post Graduate Diploma or Degree in Personnel management/Human Resource Management or Masters in Business Administration (MBA)/Post Graduate Diploma/ Programme in Management (PGDM/PGPM) from a recognized University/Institution is desirable.
4. Experience: The applicant should have atleast five years of cumulative experience during the last ten years in various aspects of HR/Personnel Management/Industrial Relations in an organization of repute.
Except for these qualifications, there is no reference to any other qualifications.
15. Learned counsel for the respondents had stated that the experience required included experience in various aspects of HR/Personnel Management/Industrial Relations in an organization of repute. It is submitted that the respondents No.6 to 8 also had experience in Industrial Relations and therefore, they were found eligible and were within the shortlisted candidates. It is submitted that it is not in dispute that the petitioner was also eligible for the said post, but they were more seniors to him in his Department, whereas only six posts were available, therefore, he could not be considered 13 TMD,J W.P.No.18698 of 2023 within the shortlisted candidates. He submitted that the Hon'ble Supreme Court in the case of Ruchir Agrawal Vs. Public Enterprises Selection Board and Others 8, it was held that the decision taken by the experts need not be questioned until and unless there is a clear bias on part of the experts and malafide is established by adducing sufficient evidence or the constitution of the committee is under challenge. In this case, there is no challenge to the constitution of the committee and therefore, the said decision is not applicable.
16. As regards the decisions relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court in the case of Bedanga Talukdar (cited supra), has held that the selection process has to be conducted strictly in accordance with the stipulated selection procedure and there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved and if there is a relaxation of such procedure, then it should be mentioned in the advertisement and in the absence of such power in the rules, it could still be provided in the advertisement. The power of relaxation, if exercised, has to be given due publicity to ensure 8 2023 SCC Online Del 5252 14 TMD,J W.P.No.18698 of 2023 that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India. In the case of Sanjay K.Dixit and Others (cited supra) this Principle has been reiterated by the Court. In the case of Indresh Kumar Mishra and Others (cited supra) also, the Division Bench of the Hon'ble Supreme Court has held that the terms and conditions of the advertisement cannot be changed. The other decisions relied upon by the learned counsel for the petitioner also support his above contentions.
17. Therefore, the settled law is that after giving the advertisement, the respondents could not have changed the experience criteria as is done in this case. However, the contention of the petitioner that the rules as on the date of the vacancy have to be considered is not correct, but it is the rule as on the date on which the respondents have decided to fill up the vacancy, will have to be considered. The advertisement is dated 30.08.2022, whereas the internal guidelines were allegedly issued on 04.02.2022. Therefore, the respondents were 15 TMD,J W.P.No.18698 of 2023 required to publish the amended guidelines dated 04.02.2022, at the time of issuing the advertisement dated 30.08.2022, but the respondents have failed to do so.
18. In view of the same, this Court deems it fit and proper to set aside the interviews conducted on 14.07.2023 and direct the respondents to re-issue the advertisement for the post of Director (Personnel) giving all the necessary details in the advertisement and thereafter, proceed with the selection process for the post of Director (Personnel) in accordance with such guidelines.
19. Accordingly, this writ petition is partly allowed. There shall be no order as to costs.
20. Miscellaneous petitions, if any, pending in this writ petition including I.A.Nos.2 & 3 of 2023 shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 21.12.2023 bak