Ms. Madhu Kukreti vs Uoi & Ors.
2011 Latest Caselaw 1439 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI


                           WRIT PETITION(C) NO.4723/2008

                                                     Reserved on: 15.12.2010
                                            Date of Decision : March 11, 2011

        MS. MADHU KUKRETI                                 ..... Petitioner
                 Through             Mr. Pradeep Kumar, Advocate

                           versus


        UOI & ORS.                                         .....Respondent
                           Through   Ms. Madhu Sweta, Advocate
                                     Md. Naushad Alam, Advocate for R3.


        CORAM:
        HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


1.      Whether Reporters of local papers may be allowed to see the
        judgment? Yes
2.      To be referred to the Reporter or not? Yes
3.      Whether the judgment should be reported in the Digest? Yes


SUDERSHAN KUMAR MISRA, J.

1. In this petition, the petitioner impugns the decision of the

second respondent to amend the selection criteria on the ground that

the changes in question were brought about after the selection process

had been completed. She states that under the circumstances, the

changes brought in have placed her at a disadvantage. The petitioner,

however, has not challenged the entire selection process but only the

appointment of the third respondent, Raghubir Singh Kainturia. It is

alleged that the selection process was amended with a view to

manipulate the results and extend favour to the third respondent.

2. The second respondent is stated to have issued an

advertisement on 29th July, 2006, in the Employment News inviting

applications for the post of Executive Assistant for its corporate Office at

New Delhi and the petitioner, admittedly, applied for the same. The

advertisement set down the following requirements for recruitment as

Executive Assistant (Direct Recruitment) :

"The candidate should be a graduate from a recognized University with a shorthand speed of 100 wpm and a typing speed of 50 wpm (in computer environment). The candidate should be a multi- skilled one with analytical mind and proficient in drafting and noting."

In addition, in the sub-heading "General", it was further prescribed as

follows:

"Mere fulfillment of requirement as laid down in the advertisement does not entitle a candidate to be called for interview. Screening may be done for short listing the number of candidates to be called for interview. No correspondence in this regard will be entertained."

3. Pursuant to the application of the petitioner, a

communication was addressed to her on 4th October, 2006, informing

her that the second respondent intends to hold a written test on

General Awareness and skill test on Shorthand and Typewriting for the

post of Executive Assistant on 28th October, 2006 and that she was

invited for the same. It was also mentioned, therein, that those found

suitable will be called for a personal interview on 29 th October, 2006.

The written test was conducted and five candidates, including the

petitioner, were short listed for the interview, which was conducted

thereafter.

4. The petitioner submits that on enquiry she was informed

by the respondent's officials that that she has been selected and would

shortly be receiving her appointment letter. Thereafter, on 8 th

December, 2006 the petitioner came to know that another candidate,

who had appeared in the interview along with her, had been offered

the appointment by the 2nd respondent. The petitioner wrote a letter

dated 15th December, 2006 to the Senior DGM (HR) of the 2nd

respondent stating that one of the successful candidates had already

received the offer of appointment, whereas, the petitioner, who was

one of the first three successful candidates, was yet to receive it. Since

no reply to the letter was received, the petitioner personally met the

officials of respondent No. 2, to no avail. The petitioner, thereafter,

wrote another letter dated 9th January, 2007, requesting information

under the Right to Information Act regarding the total marks obtained

by her and the other candidates in the skill and written test, as well as

marks obtained by the five selected candidates in the interview and

the final merit list.

5. The information supplied by the 2nd respondent showed

that the petitioner had secured 25 out of 60 marks in the Steno Skill

test, 11 out of 40 in the written test and 7.20 out of 20 in the

interview. Thus, the total marks obtained by the petitioner were 43.20

and accordingly, she was placed third in the merit list whereas another

candidate, Raghubir Singh Kainturia, respondent no. 3 herein, had

obtained a total of 37.40 and was placed fourth in the merit list.

6. The petitioner submits that, thereafter, the respondent no.

2 decided to moderate the marks obtained by the successful

candidates in the first stage, consisting of the Steno Skill and Written

test. Consequently, the marks for the Steno Skill as well as the Written

test were reckoned out of a total of 20. At the same time, marks for

the interview were kept unaltered. By this method, the weightage

given to the interview increased enormously. To begin with, the

interview was of 20 marks out of a total of 120. Thus, the original

weightage given to the interview was about 17%. However, by this

method, it was brought up to about 33%. On the other hand, the

weightage given originally to the steno skill test was 50% and that of

the written test was 33.33%. By the new method, the weightage to

the steno skill and written test decreased to about 33% each. Thus,

after moderation, the marks of the steno skill test and written test

were brought at par with the marks of the interview, i.e. 20 marks.

Now, according to the new method, the total marks of the petitioner

became 21.03, whereas that of the third respondent became 22.73.

Thus, the third respondent, who was placed fourth according to the

original merit list, was now placed third while the petitioner was now

placed fourth. Since only three posts were available, the third

respondent was given appointment and the petitioner was notified as

No. 1 in the waiting list.

7. The petitioner filed a second application under the Right

to Information Act on 2nd February, 2007, to which no reply was given.

He then filed a complaint before the Central Information Commission,

dated 16th March, 2007, against refusal of the respondents to supply

the necessary documents as requested by the petitioner. The Central

Information Commission, vide order dated 31st May, 2007, directed the

second respondent to supply the experience certificates of the five

candidates who were called for the interview.

8. The petitioner alleges that the change of rules by the

respondents after the selection process had already started is illegal

and arbitrary and that it is settled law that selection or appointment

has to be made in accordance with the rules that are in force at the

time of initiation of the selection process. He further alleges that for a

job that requires some special skill, the main criteria for selection

ought to be that particular skill and not the interview or the written

test, which are only required to be additional or supplementary tests.

9. In its counter affidavit, counsel for the 2nd respondent

submits that the role of a writ court is confined to examining the

correctness of the decision making process alone and it does not sit

as a court of appeal over the decision made by an instrumentality of

the government. In any case, the rule of moderation was applied

equally to all the candidates falling in those categories and therefore,

the question of there being any arbitrariness or unequal treatment

being meted out to the petitioner does not arise. In fact, the

moderation process was constantly being followed by the respondent

no. 2 even in their earlier appointments, and therefore it cannot be

said, there was any change in the methodology adopted for

recruitment or the criteria set down for the same with regard to the

impugned recruitment, either individually or generally, for that batch

of candidates. The respondent also submits that the only exception to

the moderation rule is the selection of Data Entry Operators-cum-

Office Assistants, because there, the only requirement there was a

typing speed of 40 wpm in English and proficiency in computer

programmes dealing with office applications, and nothing else. Thus,

the selection for all the posts, except for the post of Data Entry

Operators - cum - Office Assistants, has been on the same basis.

Even the selection with regard to Executive Secretary has been

carried out in the same manner. Respondent no. 2 states that

therefore, there is no question of having changed any process

midway, nor has there been any arbitrary selection.

10. Respondent no. 2 also contends that no details regarding

the manner and mode of tests and the weight the tests would carry

was given in the advertisement. In fact, it was never specified that the

skill test would be of 60 marks, written test of 40 marks and the

interview of 20 marks either in the advertisement or at any

subsequent stage therein. The respondent further submits that the

skill test and written test was only for short listing candidates having

shorthand speed of 100 wpm and typing speed of 50 wpm. It was only

at the interview stage that the analytical skill of the shortlisted

candidates was ascertained and that it was therefore imperative that

the weightage of the entire test be brought at par.

11. Counsel also points out that it was clearly specified in the

sub-heading "General" of the advertisement that mere fulfillment of

the requirements laid down in the advertisement does not entitle a

candidate to be called for interview. It was further mentioned therein

that the respondent no. 2 reserves the right to fill up all the posts, or

alter the number of posts, or even to cancel the entire process of

recruitment, without assigning any reason and accordingly, the

number of posts were, in fact, increased from one to three.

12. The weightage to be given to the interview in the selection

process depends on the requirement of service to which the

recruitment is to be made. The recruitment in the present case was

being carried out for the post of Executive Assistant and not merely a

Stenographer. The scope of duties of an Executive Assistant are much

wider and the candidate is expected to have a more comprehensive

grasp and understanding of various situations that he may be

confronted with during the course of his employment. It was specified

in the advertisement that the candidate is required to have multi-

skilled ability with analytical mind and proficiency in drafting and

noting. Such qualities of a person can only be assessed in an interview

where the panel gets an opportunity to directly interact with, and

assess the candidate, and form opinion about the suitability of such

candidate for the job in question. It is the case of the respondent no.

2 that the moderation process was applied keeping in view the nature

of the job and the very fact that the petitioner obtained 7.20 out of 20

in the interview shows beyond doubt that she failed to meet the

essential criteria of suitability for the job.

13. I have pointed out to counsel for the petitioner that a

system cannot be termed as illegal or arbitrary merely because the

petitioner does not fare well under that system. Furthermore, if

nothing that was not mentioned in the advertisement could be done

then, since the advertisement does not mention any process of

selection at all, the moment any process is applied, it will contravene

the advertisement. An inquiry would then have to be made as to why,

under what circumstances and at what stage the variation occurred

and whether the variation was justified under law. In this case, no

such thing has happened, therefore, the only thing that remains to be

seen is whether the respondents have evolved some unreasonable

process after advertising the posts. As a matter of fact, the process

which was ultimately applied was the same as that which had been

applied in the previous years' recruitments. It was also the same as

that which was applied for all other posts across the board save one,

hence there is no question of the process being either varied or

amended arbitrarily.

14. Counsel for the petitioner insists that the respondent has

a duty to tell the Court why they have devised the moderation

process and thereby reduced the weightage of the written test as well

as the skill test. I do not agree. Each person is entitled to devise its

own system and it is not the job of the court to sit in assessment over

the efficacy of the system adopted and replace it by its own notions.

Moreover, the wisdom of the Court with regard to a system for

recruiting Executive Assistants cannot replace the wisdom of the

employing authority. To my mind, the only challenge can be if the

system adopted is patently absurd. For example, a person needs a

Stenographer and the only test he devises is a swimming test.

15. A moderation process is normally adopted with a view to

even out any discrepancy in the marking practice where there are a

large number of candidates and they are examined by different set of

examiners, because each examiner will apply his own yardstick to

assess the answer scripts, as a result of which, some will be marked

disproportionately high while others disproportionately low though the

standard of the answers may be to some extent similar. In such

situations, the moderation process is adopted with a view to eliminate

the inconsistency in the marking standards of the examiners. The

extent and nature of moderation is always decided upon by a

moderation committee after the examination is complete and after

they see the nature of the result coming. However, in this case, what

is being done is not truly moderation. The process which is being

adopted is, in fact, part of an established system. Although it is called

moderation, but it is actually a standard formula of assessment. For

example, a person may be a good stenographer but he may not be

good as an Executive Assistant.

16. In support of his proposition, counsel for the petitioner

relies on the decision of K. Manjushree v. State of Andhra

Pradesh and Anr. (2008) 3 SCC 512, wherein, two changes were

incorporated after the entire selection process was over. The pre-

determined criteria provided for 75 marks for the written examination

and 25 for the interview, thus prescribing a ratio of 3:1. The written

examination was, however, held for 100 marks, which changed the

ratio to 4:1. Marks for the written examination were, therefore,

proportionately scaled down to maintain the 3:1 ratio. Secondly, the

criteria of minimum marks for the interview was introduced. The

petitioner relies on paragraph 24 wherein it was held that the

introduction of the requirement of minimum marks for the interview,

after the entire selection process was complete, is clearly

impermissible. This decision, however, does not help the petitioner's

case and is, in fact, against her. This is because, in that case, for the

selection in question, although the administrative committee had

decided to adopt the previous procedure in vogue; the court found

that in the earlier examination, minimum marks were prescribed only

for the written examination and not for the interview and that the

criteria of minimum marks for the interview had never been adopted

earlier. It was only after the entire process was over, that the

committee introduced the criteria of minimum qualifying marks for

the interview. This obviously cannot be permitted. On the other

hand, in the instant case, the moderation procedure had been

consistently followed in earlier recruitments as well. It was also held

in the case of K. Manjushree (supra) that the scaling down of the

written examination marks, with reference to 75 instead of 100

marks, is valid as it was in consonance with the criteria decided by

the committee before commencing the selection process.

17. A perusal of the advertisement clearly shows that it was

not specified anywhere that the steno skill test would be of 60 marks,

written test of 40 marks and the interview would be of 20 marks.

Every employing authority has the freedom to adopt any procedure

for selecting the candidates, provided it is fair and not patently

absurd. The selection procedure adopted by the respondent no. 2 was

formulated by persons possessing a thorough knowledge of the

essential requirements for that particular post. In such situations, the

Court is always reluctant to substitute its own views as to what is the

proper procedure for recruitment, in preference to those formulated

by the employing authority. In any case, this system of moderation

was not applied only for the post in which the petitioner was

interested. It was, in fact, applied to all posts except one. A rational

reason was also given for excluding the latter. It was also the same

process that had been applied in the previous years' recruitments.

Hence, there cannot be any question of arbitrariness or

discrimination.

18. Further, the post was that of an Executive Assistant and

not merely a stenographer. It was clearly mentioned in the

advertisement that the candidate should be a "multi-skilled one with

analytical mind and proficient in drafting and noting." The Concise

Oxford Dictionary (Tenth Edition, Revised) defines the word

"analytical" as "relating to or using analysis or logical reasoning".

Further, the Shorter Oxford English Dictionary (Sixth Edition) defines

the word "multi" as "more than one" and the word "skilled" as "highly

trained or experienced, esp. in a particular accomplishment". A multi-

skilled person, therefore, would be someone who is highly trained and

capable in a large variety of skills or activities. Thus, the nature of the

job was such that the candidate, besides being proficient in drafting

and noting, should also be able to comprehend and analyse what is

involved in the drafting and noting. In other words, besides being a

skilled stenographer, the candidate was also required to be able to

apply his mind and logically reason out the substance of the matter,

and also to demonstrate a high degree of accomplishment in other

areas. These qualities, however, could be properly assessed only

during an interview and it is for this reason that the weightage given

to the interview assumed greater significance.

19. In that view of the matter, I do not think any manifest

injustice has been caused to the petitioner requiring interference by

this Court.

20. This writ petition is, accordingly, dismissed.

SUDERSHAN KUMAR MISRA, J.

MARCH 11, 2011