Rachna Sharma vs B.S.N.L. And Ors.
2006 Latest Caselaw 1267 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these writ proceedings under Article 226 of the Constitution of India, the petitioner claims a direction for the quashing of the third respondent's appointment to the post by the first respondent in these proceedings, (hereinafter referred to as "BSNL"). The respondent as well as the petitioner competed for the post of Sr. Technical Assistant; two posts were advertised by the BSNL to be exclusively filled by eligible personnel in the "sports quota".

2. The petitioner claims to be a highly accomplished sports person with several achievements to her credit in the field of atheletics. She graduated from the Delhi University, and claims to have been successful in several atheletic events, such as the hundred metres sprint, 400 metres race, hurdles etc. She has filed copies of many certificates evidencing her accomplishments. She responded to an advertisement issued by the BSNL, issued on 3-02-2004, inviting applications from outstanding sports persons. The relevant part of the notification, a copy of which has been produced along the petition, reads as follows:

Appointment of outstanding sports person.

The Bharat Sanchar Nigam Limited is proposing to appoint five outstanding sports persons in the year 2003-04aspen details given below:

  

1. Sports in which appointment are proposed
 a. individual sports               b. Team sports
i) Atheletics                      i) cricket
a. Fast Runner/ High Jumper-one    a. Batsman cum-wicket keeper/ triple
                                      jumper
b. All rounder                     b. Hurdle race runner - one
c. opener batsman          
Number of vacancies may be changed. 
           xxx                  xxx                xxx

 

ii) For Non Executive posts: The sportsperson who has represented as a member of Jr/Sr. Tean in a reputed international competition. Such sportsperson should have also obtained medals in National Competitions.
 

Or
 

have represented the regional team within the country and have obtained at least third rank in regional competition at All India level.
 

Or
 

has represented Jr/Sr. Team of any state in national competitions and has obtained at least burdening individual competition and at least fourth rank in team competition;
 

Or
 

has represented the university in all India into university competitions and has obtained at least second rank in individual sports and third rank in team sports;
 

Or
 

has represented this state school team at National School sports competition and have obtained the first rank and individual sports or team sports.
 

In addition to the above criteria, applicants had to be between the ages of 18 and 25 as on 01.02.2004. The petitioner admittedly fulfillled this requirement. She is an athelete in the category of fast racer and high jumper. It is claimed that the petitioner was preparing for Olympics 2004; being an off-season, any trial for a sport event at that time could have resulted in injury. Nevertheless since she was in need of a job, she applied and was called for test trial, which was held on 1-04-2004 at the Jawaharlal Nehru stadium in New Delhi. The petitioner stood first in all the trial events i.e. hundred metre race, long jump and high jump. During the trial events,apparently the petitioner sustained some injury and could not participate in the Olympics. It is claimed and averred that the good performance put in by her in the events held by the BSNL led her to believe that she would be selected to the post. However that was not to be; to her dismay, the third respondent, who does not fall in any of the categories advertised, and is a shot putter, was selected. The petitioner claims having represented against the selection and appointment of the third respondent, to the BSNL, which however, paid no heed. As a result, she has approached the court in these proceedings.

3. The petition is premised on the ground that the selection and appointment of the third respondent cannot be sustained because the only event in which he participated, shot put, was neither listed not indicated in the advertisement. The appointment is therefore termed as arbitrary and contrary to law. It is claimed that as per the advertisement only two categories and being listed namely fast runner/high jumper/triple jumper and secondly "runner of hurdle race".

4. Though notice was issued to the respondents, only the BSNL chose to appear and contest the proceedings; the third respondent has neither appeared in these proceedings, nor even filed a return. During the proceedings, the respondents were directed to produce the original records.

5. The first respondent claims that to be selected against the atheletics sports quota, the candidate had to necessarily participate in 100 metre, 200 metre, and 400 metre race; 100 metre and 400 metre hurdle race, and Long and Triple Jump events. In all, 20 candidates attended the trial test. The petitioner stood eighth in the hundred metre race and did not participate for trial in the 200 m and 400 m and hurdle races. She stood second in the long jump and did not participate in the triple jump. It is claimed that after taking into consideration the performance of all candidates the selection committee recommended the name of Sajjan Kumar for the post of Athelete (Sprinter); the third respondent was appointed against the Athletic post for throw events. The counter affidavit further alleges as follows:

It may be stated herein that as per the decision of the selection committee to be eligible for selection under the Atheletic quota the candidate was required to meet the performance of the sports person who stood first in the 3rd All India BSNL Atheletics Meet. The selection committee found the performance of Shri Rajeev Kumar, the best and accordingly recommended the name of respondent No. 3 against the said post. The Petitioner did not participate in any throwing events i.e shot put, discuss, and Javelin as such she could not have been considered against the said posts as such the present Writ Petition is liable to be dismissed. It is further submitted that the selection of Mr. Rajeev Kumar was further justified by the fact that in the fourth All India BSNL meet Mr. Rajeev Kumar, the respondent no. 3, stood first in both the shot put and discuss throw and second in the Hammer throw, which clearly establishes that the selection was on merit and the decision of the committee in selecting Mr. Rajiv Kumar against the second post was correct. That the selection committee was made by a committee comprising of General Manager (Telegraph Services, BSNL), DGM (Administration) and Secretary (BSNL, NTRS Circle, Sports and Cultural Board, New Delhi) ADG, (Regulation, BSNL, Corporate Office) and Chief Coach, Atheletics, Delhi State as the expert members as such the selection process was carried out by the aforesaid selection committee and admittedly the petitioner has failed to allege any mala fides against any of the members of the said selection committee as such the present Writ Petition is liable to be dismissed.

6. Mr. Fanish K. Jain, learned Counsel submitted that the entire selection process was vitiated, because the third respondent was appointed in respect of a post or sports category, (shot put) which had not been advertised. It was also submitted that the respondent BSNL relied on criteria which had never been advertised or notified to the public when the selection process commenced. Counsel submitted that the benchmark adopted, i.e. the candidate was required to meet the performance of the sports person who stood first in the 3rd All India BSNL Atheletics Meet was indicated for the first time in the course of these proceedings. It was further submitted that the position taken by the BSNL i.e the petitioners stood eighth in the hundred metres race was contrary to the record; the sports test was held separately for men and women candidates. Counsel submitted that in all, about four women participated and it was never divulged during the selection process that candidates had to participate in all the events. In any case the petitioner participated in two of them; and she stood first in one of them and second in the other. In the circumstances she had the best record among women candidates, and being academically superior to the third respondent, deserved to be selected and appointed to the post.

7. Mr. Jain further submitted that except in games like tennis etc, women and men candidates are never adjudged by the same yardstick. Even in Olympics and Commonwealth Games, men's and women's events are held separately and adjudged separately. In these circumstances, the application of a uniform yardstick or criteria to judge in both women and men candidates resulted in unfairness and arbitrariness.

8. Mr. Dinesh Agnani, learned Counsel for the BSNL, justified the selection of the third respondent and the denial of the petitioner's candidature. It was submitted that the petitioner participated in only two events whereas in order to be considered for the post earmarked for athletes, every candidate had to participate in all the events. It was a further submitted that the selection committee could always evolve its own criteria which it did in this present case, indicating the minimum benchmark of equivalent of a third position in the third annual BSNL sports meet.

9. Mr. Agnani submitted that though the petitioner stood to first in the hundred metre race for women candidates, yet that by itself did not entitle her to selection, because she was eight in the overall performance ranking in that category. Furthermore, she did not participate in most of the other events such as hurdles. Therefore, her non selection could not be faulted. It was lastly submitted that the BSNL does not have a separate women's team in the NCT region, and therefore even if the selection and appointment of the third respondent were to be set aside for some reason, the petitioner could not claim appointment in his place.

10. The original records of selection were produced. The result of the test conducted on 01-04-2004 are on the file. Five women's events were held; the petitioner participated in two of them. None of the women candidates, participated in all the events. Similarly, 7 men's events were held; here too, not all the candidates participated in every event. Intriguingly, the third respondent does not appear to have participated in any event on that day; the record of his participation has not been shown; it is not in the file. The record of participation of each event with the signature of every candidate exists; however, the record of shot put test of the third respondent does not exist; his signature too is unavailable. It appears that on the basis of these tests, the selection committee recommended one Sajjan Kumar and the third respondent to the two posts. Even the recommendations of the selection committee takes into consideration only the performance in the men's events.

11. The records were left for consideration by the court, after the hearing was completed. I have gone through the same. Apart from the features noted in the preceding paragraph, one more, significant feature is that the third respondent's name did not originally figure in the typed list of candidates who were deemed eligible; it has been included by hand. There is no other candidate who participated in the shot put or any throwing event. The last feature worthy of note is that the registered post dispatch receipts in respect of all candidates who were given intimation is on record; there are 24 such receipts. The dispatch of intimation to the third respondent and the corresponding receipt is not on record. Instead, the receipt of one Kuldip Singh is on record; his name, does not however figure in the typed list of 23 candidates. The third respondent's name has been inserted by hand at the 24th place, in that list.

12. The above analysis of facts would show that the petitioner participated in two women's events; she was first in the first event, ie 100 metre sprint; and she was second in the other event. Like her, several other candidates, men and women participated in more than one event, but none participated in all the events. Even Sajjan Kumar, the lone athelete selected by BSNL, did not participate in all the events, but participated in 100 metre sprint, and 200 metre race. The stand of the BSNL that the petitioner could not be considered because she did not participate in other events, therefore is not justified; none of the candidates participated in all the events.

13. The second defense of the BSNL is that the petitioner did not measure up to a benchmark, i.e. performance levels in the third annual BSNL sports meet. This criteria, to my mind, has no bearing, because the deliberations of the Selection Committee nowhere indicate that this was the determinative benchmark.

14. The selection committee, in its minutes, while recommending the third respondent, stated as follows:

4. As per advertisement the recommendation is to be given for the following vacancy:

i. Sprint/High jump/ triple jump-1

ii. Hurdle Race 110m/400m-1

Since no suitable candidate was fond against one vacancy of Hurdle, the Committee has decided in Throw Events as per the terms and conditions of the Advertisement.

15. It is well settled that the public agency or authority (the BSNL being no exception), has to act in compliance with provisions of Articles 14 and 16 and eschew discrimination or arbitrariness, while recruiting or appointing personnel. This standard is achieved if the eligibility requirements, and the posts requiring to be filled, are clearly notified to the public, so that all available talent gets equal opportunity to compete for the post. It is not open for a selection committee, in the midst of the selection process, to change the criteria, or even the nature of the post which has to be filled, because such a course would result in unfairness to candidates who apply, as well as deprive those who do not apply, sanguine in the belief that they are ineligible.

16. The Supreme Court, in K. Shekar v. V. Indiramma , held as follows:

If we start with the "root", there can be no doubt that the appellant's appointment as Lecturer in 1986 was not in terms of the advertisement pursuant to which he had applied. Before any appointment could be made to the post of Lecturer, the post should have been advertised together with the eligibility criteria in respect thereof. The submission of NIMHANS was that since the post of Lecturer was lower than an Assistant Professor's, it was not necessary to be advertised. If this argument was accepted, it would amount to violation of Articles 14 and 16. The absence of an advertisement necessarily deprived persons who could have applied for the post, of the opportunity of applying for the post. The clause in the advertisement which enabled the Selection Committee to recommend the candidate for a lower post if the candidate was not found suitable to fill the post applied for, did not give NIMHANS the power to appoint the recommended candidate against an unadvertised post. Significantly, in the other advertisements on record dated 6-12-1986 and 1-6-1989, the post of Assistant Professor and the post of Lecturer were both advertised.

24. The clause, far from allowing NIMHANS the power to dispense with the advertisement of any lower post as a precondition to appointment, indicates that only eligible persons could be considered for selection. Once the barrier of eligibility was crossed, the Selection Committee could consider the suitability of the candidate for the post advertised. It follows that the appellant should not have been called for interview at all. His application clearly showed that he did not fulfill the requisite eligibility criteria for the post he had applied for, because he lacked any post-doctorate experience at all. The power in the Selection Committee to relax the eligibility criteria cannot be read as including the power to do away with the criteria altogether.

25. Then again, the post which was advertised was a temporary tenure post and yet by virtue of the corrigendum, the posts were made permanent. It is true that the advertisement stated that there was a likelihood of some of the advertised posts being made permanent after three years. All that this meant was that the posts would remain temporary tenure posts for three years after which there was a possibility of the appointments being made permanent. When the post itself was made permanent from its very inception by the corrigendum issued several months later, the post should have been readvertised so as to give fair notice to all prospective candidates regarding the nature of the vacancy to be filled. It was not open to NIMHANS to retrospectively and subsequent to the appointment change the nature of post advertised by issuing the corrigendum.

17. In a previous judgment, reported as Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi , the Supreme Court had held as follows:

When an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.

18. The factual matrix and the original records, in this case reveal that the selection process had advertised two specific categories in the athletic field, while calling for applications in the sports quota. No throwing event (javelin, discus, shot put) was indicated. On the other hand, sprint, high jump and triple jump, as well as hurdles were specifically indicated and advertised. Each of the candidates, save the third respondent participated in the hurdle or the sprint/ jump events. All of them were ranked for their performance. Yet, only one was selected (Sajjan Kumar). The other post was earmarked for a category which was not even advertised. The selection committee was conscious of this position, and deliberately proceeded to select the third respondent. To put it mildly, the procedure is highly irregular. I am not for the moment taking into consideration the irregularity which appears on the record, i.e the omission of recording of the third respondent's performance, or his inclusion, seemingly as an after thought, by hand in the list of candidates called for selection. The inclusion of the shot put category, not being an advertised category, is sufficient to sully the entire selection process leading to the third respondent's appointment. The procedure adopted was not only curious, but clearly beyond the norms of fairness. Had the BSNL indicated that shot put and other "throwing" events would also be considered, clearly, other eligible candidates would have applied. The selection and appointment of the third respondent is therefore, indefensible.

19. As far as the position of the BSNL that it did not select the petitioner since it does not have a women's team is concerned, I am of the opinion that this is a clear after thought; the records of the selection committee do not support this version. Similarly, the position that the petitioner stood eighth in the sprint event is unsupported by the record, which clearly shows that men's and women's events were separately judged. The selection committee does not indicate, in its minutes of meeting that women cannot be selected, or that an integrated list of men and women athletes, on the basis of their separate events, could be drawn up. This position defies conventional wisdom, and practice, because women's sports events, particularly in races, athletics, and other field events are judged separately, in all National and international sports meets.

20. In view of the above discussion, the writ petition deserves to be allowed. A direction is issued quashing the selection and appointment of the third respondent. The respondent BSNL is directed to review the selection in so far as the women's events are concerned, and judge the suitability of the women candidates on the basis of their participation in the various events on 01-04-2004, and select one among them. This process shall be completed within four weeks from today. The respondent BSNL shall also pay an amount of Rs. 15,000/- as costs to the petitioner, within the said period of four weeks.