Delhi High Court
Parmod Vats vs Employees State Insurance ... on 17 April, 2013
Author: Pradeep Nandrajog
$~11&12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : April 17, 2013
+ W.P.(C) 6225/2012
DEEPAK ..... Petitioner
Represented by: Ms.Jyoti Singh, Sr.Advocate instructed by
Mr.Sachin Chauhan, Advocate.
versus
UOI & ORS. ..... Respondents
Represented by: Mr.Ruchir Misra and Mr.M.P.Singh,
Advocates for R-1.
Mr.Manish Kumar Saran and Mr.S.P.Sharan,
Advocates for R-2 and R-3.
W.P.(C) 7025/2012
PARMOD VATS .... Petitioner
Represented by: Ms.Jyoti Singh, Sr.Advocate instructed by
Mr.Sachin Chauhan, Advocate.
versus
EMPLOYEES STATE INSURANCE CORPORATION ....Respondent
Represented by: Mr.Manish Kumar Saran and
Mr.S.P.Sharan, Advocates.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG, J. (Oral)
1. Identical issue raised in the two captioned petitions was decided
by a Division Bench of which one of us, Pradeep Nandrajog, J. was a
Member of, when four writ petitions, lead matter being W.P.(C)
No.696/2013 Mukesh Kumar Vs. ESIC & Ors. were dismissed.
2. Issue pertained to ESIC requiring minimum 6 marks out of 10
marks to be obtained for Formatting features i.e. prescribing a minimum cut
off marks; and the grievance being that the advertisement inviting
applications did not so specify. It was urged that rules of the game have
been changed midstream. In paras 5 to 9 of the decision dated March 08,
2013, it was noted as under:-
5. On November 05, 2009 an advertisement was issued
inviting applications from eligible candidates to fill up 70
vacant posts of Lower Division Clerks by direct recruitment
by Employees State Insurance Corporation. It was indicated
in the advertisement that information pertaining to the
proposed examination may be accessed on the website
„www.esicdelhi.org.in‟. It was indicated that the written
examination of 200 marks would be held in the month of
January 2010 and that on merit basis pertaining to the
written test, in a ratio, candidates would be called to take the
Computer Skill Test.
6. Pertaining to the written test, the website displayed as
under;-
"Maximum Marks :200
Number of Questions :200
Test Duration : upto 3 Hours
Sections in the Test:
(i) English Language
(ii) General Intelligence & General Aptitude
(iii) Numerical Aptitude and
(iv) General Awareness
(v) Clerical Aptitude(Sometimes this section is removed)"
7. Pertaining to the Computer Skill Test, the website
indicated:-
"Skill Test is conducted to judge the knowledge of computer.
Candidates are called for the skill test based on their
performance in the Part I (written test).
Note:
The candidate has to secure minimum qualifying marks
in each part.
There is negative marking for wrong answers"
8. It may be noted that the website did not display the
conditions prescribed in the office order dated October 19,
2006 i.e. the manner in which the candidates would be
evaluated and in particular that pertaining to the Computer
Skill Test, 10 marks would be allocated for formatting and
that a candidate should secure at least 6 marks to qualify.
9. Writ petitioners were a few of the thousands of
applicants. They were the few hundred who successfully
cleared the examination and were called to take the
Computer Skill Test, but success eluded them
notwithstanding they and a few more, obtaining higher marks
in the aggregate vis-a-vis a few who were selected. The
reason being that the writ petitioners obtained less than 6
marks out of 10 marks pertaining to the Computer Skill Test
which had 50 marks, but out of which, formatting was
assigned 10 marks."
3. Reasoning in paras 26 to 28 of the opinion reads as under:-
"26. We have already noted hereinabove in paragraph 5 that
the advertisement dated November 05, 2009 clearly indicated
to the prospective candidates that information pertaining to
the proposed examination may be accessed on the website:
„www.esicdelhi.org.in‟. It was indicated in the advertisement
that a written examination for 200 marks would be held in the
month of January, 2010 and candidates would be called to
take the Computer Skill Test in ratio of merit basis upon
success at the written examination. Thus, the candidates were
made aware that further information may be accessed on the
website. As noted by us in paragraph 6 above, the website
displayed the subject on which the written test would be held.
As noted by us in paragraph 7 above, the website displayed
that the skill test to judge the knowledge of computers would
require the candidates to „secure minimum qualifying marks
in each part‟. The reference to securing minimum qualifying
marks in each part is in a Note displayed on the website
pertaining to the information relating to the Computer Skill
Test and thus the argument that the Note made a reference to
minimum qualifying marks in the written test and the
Computer Skill Test, to be taken in the aggregate for the two
papers, is rejected by us for the reason the website distinctly
spelt out the information pertaining to the written test and
distinctly to the Computer Skill Test; and only pertaining to
the latter was the Note indicating minimum qualifying marks
to be secured in each part. This would mean each part of the
Computer Skill Test, wherever prescribed.
27. The candidates were thus made known that the different
segments of the Computer Skill Test require minimum
qualifying marks to be secured in some part. It may be true
that what was the minimum qualifying mark prescribed was
not made known to the candidates, but as rightly opined by
the Tribunal, it was the duty of the candidates to have found
out the minimum qualifying marks prescribed. In the view we
have taken on facts, where we find that the decision
containing the criteria to test the knowledge of the candidates
had preceded the initiation of the selection process, we need
not deal with the decision relied upon heavily by both sides
reported as (2008) 3 SCC 512 K.Manjusree Vs. State of A.P.
& Ors.
28. To conclude, we simply state that the relevant material
would evidence that the applicable Recruitment Rule for the
post in question prescribed 75% posts to be filled up by direct
recruitment. The Recruitment Rule required said quota to be
filled up on the basis of a competitive examination. The
criteria to determine competitiveness of the candidates was
prescribed on October 19, 2006 and therein pertaining to the
Computer Skill Test it was clearly indicated that for
formatting features, candidates have to the secure at least 6
marks out of 10 marks to qualify. The advertisement issued in
the year 2009 clearly informed the candidates that
information pertaining to the examination would be accessed
on the website of the organization, and the website clearly
made it known that pertaining to the Computer Skill Test the
candidates have to secure minimum qualifying marks
wherever prescribed in each part of the skill test."
4. It is urged that on February 18, 2013, the Secretary to the
Government of India has recorded that notice on the website of ESIC did not
inform minimum cut off qualifying marks.
5. Now, as noted by the Division Bench, the website did not
indicate the minimum cut off qualifying marks i.e. 6 marks out of 10 marks
for Formatting features, but as noted in para 7 of the decision, the Note
pertaining to the skill test did indicate that candidates have to secure
minimum qualifying marks in each part.
6. We find no hiatus between the view taken by the Secretary to
the Government of India and the decision of the Division Bench pronounced
on March 08, 2013.
7. The writ petitions are dismissed but without any orders as to
costs.
(PRADEEP NANDRAJOG)
JUDGE
(V. KAMESWAR RAO)
JUDGE
APRIL 17, 2013
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