Dr, S. Radha Ramona Sree, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 7435 AP

     THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                   W.P. Nos.18203 & 19984 of 2020

COMMON ORDER:

      The Writ Petition No.19984 of 2020 is filed to set aside the

appointment of 5th respondent who appointed under G.O.Rt.No.439

dated 06.10.2020 and W.P. No.18203 of 2020 is filed in allotting more

marks for interview to be conducive to arbitrary selection.

2. The main contention of the writ petitioner is that the interview

marks should not be more than the marks prescribed for written test.

3. Heard Sri P.V. Krishnaiah, learned counsel for the petitioner, Sri

V. Ramesh, learned Government Pleader for Services-IV, learned

Government Pleader for Education and learned counsel for the

unofficial respondent.

4. The petitioner was initially appointed as Staff Nurse on

16.06.1995 and got promotion as Nursing Tutor in 1995 and later she

was appointed as Assistant Professor in 2012.

5. The learned counsel for the petitioner would submit that the

Director of Medical Education-4th respondent has issued notification in

Rc.No.29901/MN-1/2016, dated 15.01.2017 inviting applications to fill

up the post of Registrar, in the Andhra Pradesh State Nursing Council,

Vijayawada. In pursuance of the said notification, the petitioner has

applied to the above said post. That the petitioner was appointed by

way of deputation for 3 years in pursuance of the notification dated

15.01.2017 on conducting a written examination and oral interview.

However, the deputation period was extended for three more months on

completion of the deputation period of the petitioner vide

G.O.Rt.No.286, Health Medical and Family Welfare (E1) Department,

dated 02.06.2020.

6. The Director of Medical Education-4th respondent has issued a

notification in RC 4659/MN-1/2020 dated 04.07.2020 (hereinafter

referred to as "Notification dated 04.07.2020") inviting applications for

the post of Registrar in Andhra Pradesh State Nursing Council,

Vijayawada, that the petitioner herein along with the unofficial

respondent and others have applied for the said post in pursuance of

the above said notification. In the said notification a procedure was

contemplated for the selection of the post of Registrar. As per the

notification, one should possess qualification of RNRM, M.Sc.(N), from a

recognized University, experience 8 to 10 years and age should be 35 to

50 years, which can be relaxed as per the Government Rules.

Experience in working in Indian Nursing Council/ Stating Nursing

Council will be preferred and other conditions as mentioned in the

notification. As per the notification the last date for submission of the

application is 20.07.2020 and the notification specifies that the

selection will be based on written test, short listed candidates will be

called for interview. In the written examination, the petitioner has

secured 62 marks and the unofficial respondent secured 51 marks.

7. The Notification issued inviting applications for the appointment

of Registrar, A.P. Nursing Council, Vijayawada, the conditions

mentioned in the notification dated 04.07.2020 are extracted

hereunder:

"Eligibility for the post of Registrar, State Nursing Council

1. Qualification : RNRM, MSc(N) from a recognized University.

2. Experience : 8-10 years experience in nursing education and administration out of which at least 5 years in teaching.

3. Age : 35-50 years (Age relaxable as per Government Rules)

4. Desirable : Experience in working in Indian Nursing Council / State Nursing Council will be preferred.

 Publication in Nursing Journal or other health related journal / Magazine.

 Experience in planning conducting and writing of nursing project/research reports.

 Membership of any nursing professional body.

The candidates are requested to submit the application on plain paper along with supported documents and address to the Deputy Director (Nursing) O/o Director of Medical Education, Old Government General Hospital, Hanumanpeta, Vijayawada - 520 003. The envelope should be superscribed as "Application for the post of Registrar, A.P. Nursing Council, Vijayawada"

The last date for the submission of applications to the above address is 20.07.2020. Postal delays are not accepted. Selection will be based on written test. Short listed candidates shall be called for interview.

8. The case of the petitioner is that a Three Members Committee was

constituted for conducting interviews and having given 300 marks i.e.

100 marks for each Committee Member. The contention of the

petitioner is that the interview marks should not be more than the

marks of written examination and relied on the judgment of the Hon'ble

Apex Court in Satpal and others v. State of Haryana and others1, and

also relied on 2015 SCC Online Patterns, the Hon'ble Apex Court after

considering the judgments of the Constitutional Bench in Ajay Hasia v.

Khalid Mujib Sehravardi2 and another judgment in Ashok Kumar Yadav

v. State of Haryana3 held that allocation of more than 15% of the total

marks for the oral interview would be arbitrary and unreasonable.

Hence, relying on the judgment, the counsel for the writ petitioner

submitted that the Committee has been allotted 300 marks i.e. 100

marks to each member in order to accommodate the unofficial

respondent. And as the, allocation is unconstitutional and it is

contrary to the judgment of the Hon'ble Apex Court and prayed to annul

the G.O.Rt.No.439, Health Medical and Family Welfare (E1)

Department, dated 06.10.2020 wherein the unofficial respondent has

been appointed as Registrar at Andhra Pradesh State Nursing Council,

Vijayawada.

9. Per contra, Mr. M.R. Tagore, learned counsel for the unofficial

respondent would submit that the unofficial respondent was appointed

in due procedure of law and the writ petitioner is not entitled for the

post of Registrar, as she has crossed the age and the deputation cannot

be more than 3 years and she is on the verge of retirement and

therefore, the petitioner is not entitled for the post of Registrar in A.P.

State Nursing Council and the post is tenure post and ineligible

1 1995 Supp (1) Supreme Court Cases 206 - 1995 (3) SLR 787 (SC) 2 (1981) 1 SCC 722 3 (1985) 4 SCC 417

candidates cannot be appointed and relied on the Judgments of the

Hon'ble Apex Court in Manish Kumar Shahi v. State of Bihar and others4

wherein that case, out of total 1050 marks, 200 marks fixed for the viva

voce, 850 marks fixed for the written examination.

10. It is further submitted that in earlier notification 50 marks were

fixed to each Committee Member out of 150 marks.

11. Now, the consideration in the present writ petition is whether

allotment of 100 marks each of the Committee Member is sustainable in

law or not?

12. As per the said Notification dated 04.07.2020 appointment

committee stated that the selection would be based on written test and

short listed candidates were called for interview. As per the said

Notification dated 04.07.2020, the Registrar post is a tenure post and

the written examination is only formal for short listing candidates. The

interview marks for the performance of the candidates at the viva voce.

As per the said Notification dated 04.07.2020 no marks were fixed for

the written test or for the interview. If at all the petitioner is aggrieved

by the notification would have been challenged, the notification itself for

non fixing marks for written and interview test.

13. It is evident from the notification that the decision relating to

fixing of qualifying cut off marks for written test and interview was

taken much prior to the issuance of the advertisement for the instant

recruitment process. The said cut off marks were fixed for recruitment

4 (2010) 12 Supreme Court Cases 576

examination which was conducted by the State Nursing Council as well

as in selection cases. Thus, it cannot be said that the qualifying cut off

marks for the interview was fixed in the midst of the recruitment

process. The said cut of marks are applied universally to all the

candidates appearing in the examination conducted by the State

Nursing Council.

14. As no marks are prescribed separately for the written test and

interview as held by the Hon'ble Supreme Court in Sardar Singh and

others v. State of Punjab and others5 it is not open to the petitioner to

challenge the validity of the selection since she had herself applied for

the said selection and therefore the procedure adopted does not vitiate

the selection.

15. The Hon'ble Supreme Court in Dalpat Abasaheb Solunke and

others v. DR. B.S. Mahajen and others 6 , held that it is needles to

emphasis that it is not the function of the Court to hear appeal over the

decisions of the selection committee and to scrutinize the relative merits

of the candidates. Whether a candidate is fit for a particular post or not

has to be decided by duly constituted selection committee which has

the expertise on the subject. The Court has no such expertise. The

decision of the selection committee can be interfered only on limited

grounds such as illegality, or patent material irregularity in the

constitution of a Committee or its procedure vitiating the selection or

proved malafides affecting the Selection. In the present case a

5 1991 (4) SCC 555 6 1990 (1) SCC 305

Committee was constituted consisting of experts and it selected the

candidates after going through all relevant materials before it.

16. The Hon'ble Supreme Court in Manish Kumar Sahi case held

that after considering the judgment in Ashok Kumar Yadav and Lila

Dhar v. State of Rajasthan and others7 case and held that in para 15 of

the judgment earmarking 200 marks for viva voce test as against

written marks 850 does not violate the doctrine of equality embodied in

Article 14 and 16 of Constitution of India.

17. The Judgment relied by the Writ Petitioner is under different

connotation which is not applicable to the present facts of the case.

The Judgment in Satpal case was based on the Judgment of Ashok

Kumar Yadav and Liladhar case. In Satpal Case the High Court of

Haryana has quashed the selection on three grounds viz., 1) Large

majority belongs to one district. 2) The selection process was reduced to

mere farce or mockery 3) The percentage of marks allotted for interview

is high.

18. In Union of India & others v. S. Vinodh Kumar & others 8 , the

Hon'ble Supreme Court held that it is for the employer or the expert

body to determine the cut off marks. The Court while exercising its

power of judicial review would not ordinarily intermeddle therewith.

The jurisdiction of the Court in this behalf is limited.

19. It is also well settled that a candidate taking part in a selection

process is estopped from questioning the same after being

7 1981 (4) SCC 159 8 2007 (8) SCC 100

unsuccessful. For this jurisdiction this Hon'ble Court relies in Ranjan

Kumar and ors. v. State of Bihar and ors.9 and Dhananjay Malik and ors.

v. State of Uttaranchal10.

20. In Anzar Ahmad v. State of Bihar 11 case the selection should be

made on the basis of the interview but the Commission in accordance

with the past practice has made the selection by giving equal weight to

the academic performance as well as the interview. On such facts, the

Hon'ble Supreme Court held that such act of the Commission has

rather reduced the possibility of arbitrariness and held that such

procedure adapted by the Commission do not suffer from the vice of

arbitrariness.

21. In the present case notification issued for the post of Registrar

which is not a selection post to follow the recruitment process. The

notification was issued formally to select the candidates and the

notification clearly indicates that the written test is only for the purpose

of short listing candidates for interview and the interview is the basis for

the performance of the candidate merely the petitioner selected in the

earlier notification that does not mean that she has performed good in

the present notification. Hence, the contentions raised that the

interview marks cannot be more than the written examination cannot

be countenanced as the present selection is not a regular selection and

the notification was not issued in the process of regular selection.

9 (2014) 16 SCC 187 10 (2008) 4 SCC 171 11 (1994) 1 SCC 150

Merely, the petitioner was not selected that she cannot question that

the awarding interview marks for vice voce more than written

examination is liable to be rejected. The candidate taking part in

selection process is estopped in questioning the same after being

unsuccessful.

22. This Court cannot sit in an appeal over the selections have made

to set aside the selection on the ground of the so called comparative

merits of the candidates. The present post is only a tenure post, a

tenure post was defined under Sub-rule (30-A) of Rule 2 of Andhra

Pradesh Fundamental Rights. A tenure post means a permanent post

which an individual Government servant may not hold for more than a

limited period. So, it is crystal clear from the afore said definition that

the post of Registrar (tenure post) for three years /on extended to 5

years.

23. Now, the petitioner cannot without questioning the notification

wherein it does not prescribed any marks for the written test and

interview but for not selected the petitioner cannot agitate with the

fixing of more marks for the interview is bad in law. The Petitioner

ought to have been questioned the very notification for not fixing the

marks for the written test and interview.

24. However, no grounds to interfere with the selection of the

unofficial respondent for the reasons stated above.

25. In view of the same, this Court does not find any arbitrariness,

illegality or infirmity of the Expert Committee / Interview Committee

Members. As no attribution made against the Interview Board, this

Court is not inclined to interfere with the Selection made by the

Selection Committee. Accordingly, Writ Petition is dismissed. No costs.

Miscellaneous Petitions pending, if any, shall stand closed.

_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: -09-2022 Harin

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

W.P. Nos.18203 & 19984 of 2020

Date: -09-2022

Harin