Madhu Kukreti vs Union Of India & Ors.
2012 Latest Caselaw 1054 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 15th February, 2012
[

+                                  LPA 502/2011
%           MADHU KUKRETI                                    ....Appellant
                       Through:         Mr. Harish Pandey, Adv.

                                     Versus

            UNION OF INDIA & ORS.                           ..... Respondents
                         Through:       Mr. Ravinder Agarwal, Adv. for R-1.
                                        Mr. Chetan Sharma, Sr. Adv. with
                                        Ms. Madhu Sweta & Ms. Shreya
                                        Verma, Advs.
                                        Mr. Naushad Alam & Mr. Jitendra
                                        Bharti, Adv. for R-3.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                  JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This Intra-Court Appeal impugns the judgment dated 11th March,

2011 dismissing W.P.(C) No. 4723/2008 preferred by the appellant. Notice

of the appeal was issued and the same was admitted for hearing. The

counsels have been heard.

2. The respondent no.2 Security Printing & Minting Corporation of

India Ltd. (SPMCIL), a Public Sector Undertaking wholly owned by the

Government of India had vide advertisement published on 29 th July, 2006

invited applications inter alia for the three posts of Executive Assistant with

the following qualification:-

"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. Experience - Working experience of five years shall be required. Knowledge of Hindi Stenography and Hindi Typing will be an added qualification."

3. The appellant applied for the said post, was called for and appeared in

the objective type written test on general awareness and skill test in

shorthand and typing and was thereafter called for an interview on 29 th

October, 2006. The appellant claims to have learnt on 8th December, 2006

that the respondent no.3 Shri Raghubir Kaintura had been given an offer of

appointment to the said post. The appellant on 9th January, 2007 enquired

under the Right to Information Act, 2005 about the selection process and

was on 19th January, 2007 informed that five candidates had been called for

interview and had scored as under:-

                            Steno Skill       Test     Test Total   Interview   "Total
                            Test (60        Written      (100          (20      (120
                             Marks)       (40 Marks)    Marks)       Marks)     Marks)

1 Ms.    Renu     Bala          48           14           62          10.60      72.60
  Bhasin
2 Shri Kamal Kishore            34           14           48          12.00      60.00



 3 Ms. Madhu Kukreti           25                11          36          07.20      43.20
4 Shri Raghubir Singh         10                16          26          11.40      37.40
  Kainturia
5 Shri Sunil Kumar            04                13          17          10.80      27.80

4. The appellant claims that the respondent no.2 SPMCIL thereafter

with an intent to place the respondent no.3 above her reduced the weightage

given to the steno skill test and written test and as a result whereof the

marks of the five candidates aforesaid were worked as under:-

Steno skill Test Written Test Interview (20 Total (60 (20 Marks) (20 Marks) Marks) Marks) 1 Ms. Renu Bala Bhasin 16 7 10.60 33.60 2 Shri Kamal Kishore 11.33 7 12.00 30.33 3 Ms. Madhu Kukreti 8.33 5.5 07.20 21.03 4 Shri Raghubir Singh 3.33 8 11.40 22.73 5 Shri Sunil Kumar 1.33 6.5 10.80 18.63

5. The appellant on 2nd February, 2007 sought some further information

regarding work experience and upon not receiving the same, on 16th March,

2007 complained to the Central Information Commission and whereafter

the said information was furnished to her; the appellant claims that as per

the said information also the work experience of all the five candidates

aforesaid was more or less the same.

6. The appellant on 12th September, 2007 filed a petition under Section

19 of the Administrative Tribunals Act, 1985 impugning the selection

process/appointment aforesaid. However upon the respondent no.2

SPMCIL disputing the jurisdiction of the Central Administrative Tribunal,

the appellant on 27th February, 2008 withdrew the said petition. Though the

appellant thereafter in April, 2008 filed the writ petition from which this

appeal arises but the defects in filing thereof were cured and the writ

petition got listed only on 18th July, 2008. Notice of the writ petition was

issued. The respondent no.2 SPMCIL in its counter affidavit pleaded:-

A. that in the absence of any allegations of malafide the Court

could not in exercise of powers under Article 226 sit in appeal

over the selection made by the respondent no.2 SPMCIL;

B. that the selection process was uniformly applied to all the

candidates and thus could not be said to be arbitrary or

discriminatory;

C. that it was not as if the selection process was changed midway

in as much as it was never specified how the marks will be

allocated for different stages of selection and the weightage to

be given to interview in the selection process depends on the

requirement of service to which recruitment is to be made;

D. that the Executive Assistant was required to have multi-skilled

ability with analytical mind and proficiency in drafting and

notings and which qualities can be analyzed and assessed only

in an interview;

E. that the appellant had scored only 7.2 marks out of 20 in the

interview which was indicative of her not meeting the criteria

of suitability;

F. that the challenge in August, 2008 to the appointment made in

December, 2006 was barred by laches;

G. that the steno skill test and written test comprised of 100 marks

with 60 marks being apportioned for steno skill test and 40

marks for written test but while preparing the final merit list of

shortlisted candidates the marks of the steno skill test and

written test moderated to 20 marks each to bring it at par with

20 marks allocated for interview;

H. that similar criteria was also applied for the post of Executive

Secretary, applications wherefor were also invited vide the

same advertisement - however no such moderation was done

in case of recruitment for the post of Data Entry Operator-cum-

Office Assistant as only requirement for the said post was

typing speed and proficiency in office applications like Word

Processing and Spread Sheet; that it was specified in the

advertisement in pursuance to which the appellant had applied

that mere fulfillment of the eligibility requirements will not

entitle a candidate to be called for the interview;

I. that the appellant being not amongst the first three candidates

in the merit list was not offered appointment and was placed at

serial no.1 in the waiting list but since the first three candidates

accepted the offer for appointment the occasion for resorting to

waiting list did not arise.

7. The respondent no.3 also filed a counter affidavit additionally

pleading that by the time the appellant had filed the writ petition he had

been confirmed to the post of Executive Assistant.

8. The Learned Single Judge dismissed the writ petition holding that,

the advertisement inviting applications did not mention any process of

selection or the marks to be allocated for steno skill test, written test and

interview and thus it could not be said that the rules of selection had been

changed midway; that the modus of selection evolved by the respondent

no.2 SPMCIL cannot be said to be unreasonable; that the Court cannot

substitute its own views as to what is the proper procedure for recruitment,

in preference to those formulated by the employing authority; that the post

of an Executive Assistant is different from the post of a Stenographer and

the advertisement inviting applications having listed the requirement of an

analytical mind and proficiency in drafting and notings, was indicative the

respondent no.2 SPMCIL not giving weightage to the steno skill test and

written test only but to the interview during which the mind and the other

skills could be tested.

9. The appellant in this appeal finds fault with the finding of the

Learned Single Judge of the rules of selection having not been changed

midway. It is contended that it was nowhere mentioned that such

moderation would be applied. It is further contended that allocation of

33.33% marks as finally done, to the interview is contrary to law. It is also

contended that the transparency and fairness has been lacking in the

selection process. The counsel for the appellant during the hearing has also

handed over response of the respondent no.2 SPMCIL to yet another query

under the RTI Act made by the appellant in October/November, 2011 to

show that the said moderation process was applied for the first time during

the appointment aforesaid and had not been applied in any earlier

appointments.

10. The senior counsel for the respondent no.2 SPMCIL besides

supporting the judgment of the Learned Single Judge has also relied upon

Dalpat Abasaheb Solunke v. Dr. B.S.Mahajan (1990) 1 SCC 305 in

support of the argument that it is not the function of the Court to sit in

appeal over the decision of the Selection Committee and to embark upon

deciding the relative merits of candidates.

11. Mention may be made of the fact that upon the appellant, during the

course of hearing informing that there were still vacancies in the respondent

no.2 SPMCIL for the post of Executive Assistant, we had asked the senior

counsel for the respondent no.2 SPMCIL about the same but were informed

that the said vacancies are only in the OBC category.

12. Though on first blush it does appear that with the change in the

allocation of marks for steno skill test, written test and interview the rules

of the game have been changed after the game has begun (and which as per

Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 is not

permissible) but on closer scrutiny it is not found so. The Learned Single

Judge is correct in observing that the applicants for the post were not

informed, neither in the advertisement nor during the selection process, as

to what weightage was to be given to the steno skill test, written test and

interview respectively. Merely because the respondent no.2 SPMCIL while

holding the steno skill test and written test and in which 14 candidates had

appeared, allocated 60&40 marks respectively thereto, probably for the sake

of convenience, cannot be held to bind it to retain the said allocation till the

end of the selection process. The Learned Single Judge is also correct in

holding that as per the description and requirement of the post, the same

was not merely of a Stenographer for the respondent to be required to give

higher weightage to the steno skill test only and that the state of the mind

and personality could be judged in the interview only.

13. We may also notice that though the appellant impugned the selection

process but did not implead Ms. Renu Bala Bhasin and Shri Kamal Kishore

the first two candidates in the merit list nor Shri Sunil Kumar placed at

serial no.2 in the waiting list.

14. We may further notice that though the respondent no.3 had scored

considerably more than the appellant in the written test but upon the

moderation aforesaid being effected by the respondent no.2 SPMCIL he

was also adversely affected, his marks in the written test having stood

considerably reduced. It is thus found to be a mere coincidence that on such

moderation being effected the total marks scored by the respondent no.3

came to be slightly higher than those of the appellant.

15. We may at this stage also notice that though the respondent no.2

SPMCIL as well as Learned Single Judge have used the expression

"moderation" but what was done by the respondent no.2 SPMCIL in

changing the weightage cannot be said to be moderation as is commonly

understood. What the respondent no.2 SPMCIL did was to change the

weightage given to each of the three. The respondent no.2 SPMCIL having

not laid down the weightage for the three tests at any time, and no malafide

being found, the principle of changing the rules after the game has begun is

not attracted. As far as the contention of the appellant of the respondent

no.2 SPMCIL giving undue weightage to the interview is concerned though

undoubtedly the Apex Court in Ajay Hasia v. Khalid Mujib Sehravardi

1981 SCR (2) 79 held that the weightage to the interview should not be

more than 15% but subsequently in Ashok Kumar Yadav v. State of

Haryana AIR 1987 SC 454 it was held that no hard and fast rule regarding

the precise weightage to be given to viva voce test/interview as against

written test can be laid down and it must vary from service to service

according to requirements of service, minimum qualification

prescribed, body to which task of holding viva voce test is entrusted and a

host of other factors. In Mehmood AlamTariq v. State of Rajasthan (1988)

3 SCC 241, interview was described as an aid to selection designed to give

selectors evidence of personality and character of candidates. We are

convinced with the arguments of the respondent no.2 SPMCIL that an

Executive Assistant is much more than a Stenographer. In today‟s day and

time of easy access to communications through internet and

telecommunications and voice to print applications available, Stenography

is a dying art. The famous Pitman‟s Shorthand schools which could earlier

be seen in every nook and corner seem to have shut shop. In fact the present

generation is more used to punching the keys of the computer/laptop

themselves rather than dictating to a Stenographer. The role of an Executive

Assistant which was earlier confined to handling the correspondence and

thus to taking dictation, is now transformed to taking the load of mundane

chores to enable the officers to whom he/she is attached to concentrate on

other matters. An Executive Assistant, to be able to so take off the load

from the officer, will have to be a thinking one who is something more than

merely performing what he/she is told. The respondent no.2 SPMCIL while

prescribing eligibility requirements appears to have emphasized on

analytical mind and multi-skilled personality for this reason only. The

respondent no.2 SPMCIL and the Learned Single Judge are also correct in

holding that the same could be gauged only in the interview and not

otherwise. Undoubtedly the respondent no.3 fared much better than the

appellant in the interview and which shows that he was found by the

interview board, against whom and with respect whereto there are no

allegations, to be much more suitable for the job. The decision of the

respondent no.2 SPMCIL to appoint a go-getter, even if not so good a

steno, considering the nature of the job cannot be faulted with.

16. We are also concerned with the long delay of nearly 1 ½ year on the

part of the appellant in challenging the appointment/selection. Though the

appellant could not know the selection criteria earlier, but it is clear that

upon receipt of the information in January, 2007, she was in a position to

challenge the selection but she waited for another 1 ½ year to do the same.

The enquiries made by her in the interregnum are not found to be such

without which challenge could not have been made. The delay occasioned

on account of wrongly approaching the Central Administrative Tribunal is

again attributable to the appellant alone. The appellant thereafter also did

not show any anxiety and as aforesaid got the writ petition listed after

nearly five months even after filing thereof. Considering the nature of the

relief claimed in the writ petition i.e. of challenging the selection of the

respondent no.3 and seeking her own appointment in his place, such delay

is found to be fatal.

17. We therefore do not find any merit in the appeal and dismiss the

same. However considering the status of the appellant, no order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

FEBRUARY 15, 2012 „pp.‟