Delhi High Court

Rajesh Dagar vs Chairman And Managing Director Of ... on 14 December, 2015

Author: V. Kameswar Rao

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of decision: December 14, 2015
+        W.P.(C) 6436/2015 & CM No.11715/2015
         RAJESH DAGAR
                                                               ..... Petitioner
                          Through               Mr.Rajiv Manglik, Advocate
                          versus
         CHAIRMAN AND MANAGING DIRECTOR OF AIR
         INDIA
                                              ..... Respondent
                          Through Mr.Lalit Bhasin, Advocate
                                  with Ms.Ratna D. Dhingra &
                                  Ms.Bhavna Dhami,
                                  Advocates
+        W.P.(C) 6705/2015
         RAHUL PANCHAL                        ..... Petitioner

                          Through   Mr.Rajiv Manglik, Advocate
                          versus
         CHAIRMAN AND MANAGING DIRECTOR, AIR INDIA
         LTD.
                                                ..... Respondent
                          Through   Mr.Lalit Bhasin, Advocate
                                    with Ms.Ratna D. Dhingra &
                                    Ms.Bhavna Dhami,
                                    Advocates
+        W.P.(C) 6487/2015 & CM No.11825/2015
         PRASANNA C. NIKHADE & ANR
                                                ..... Petitioner

                     Through Mr.Rajiv Manglik, Advocate
                     versus
         CHAIRMAN AND MANAGING DIRECTOR OF AIR
         INDIA                           ..... Respondent
                     Through Mr.Lalit Bhasin, Advocate
                             with Ms.Ratna D. Dhingra &
                             Ms.Bhavna Dhami,
                             Advocates


W.P.(C) No. 6436/2015 and connected matters                          Page 1 of 11
 CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

1. As these three writ petitions involve a similar issue with identical

facts, are being decided by this common order. The petitioners in these

petitions belong to OBC and SC categories.

2. The facts are being culled out from Writ Petition No.6436/2015.

The respondent Air India Limited had issued an advertisement dated

February 27, 2015 for filling up post of Senior Trainee Pilot with A-320

Endorsement to be recruited after being declared successful in Simulator

Proficiency Assessment Check (SPAC) and personal interview only. The

appointment was to be on contract basis for 5 years. The petitioners

applied for the said post. They were informed vide e-mail dated March

28, 2015 to have been provisionally shortlisted for conduct of tests and

were intimated to be present for SPAC test at Secunderabad on April 09,

2015 by depositing fee of Rs.20,000/- towards the test and verification of

documents. The respondent published the result of SPAC in April, 2015

and the petitioners were declared successful. Accordingly, the petitioners

were called for interview on April 22, 2015 (petitioner in W.P.(C)

No.6436/2015), April 23, 2015 (petitioner in W.P.(C) No.6705/2015) and

April 22, 2015 & May 05, 2015 (petitioners in W.P.(C) No.6487/2015).

The petitioners were interviewed on the respective dates, referred to

above.

3. Mr. Rajiv Manglik, learned counsel for the petitioners would

submit, that in terms of the advertisement, the selection was to be based

on SPAC and personal interview. It is his submission that the information

gathered by the petitioner(s) through media was that the respondent also

conducted the psychometric test without following the procedure laid

down for the psychometric test worldwide and only resorting to by

incorporating a Psychiatrist in the panel of interviewers. When the results

were declared, the petitioners' names were not included in the list of

successful candidates primarily on the basis of psychometric evaluation.

Despite representation by the Air Corporations' SC/ST Employees

Association to the respondent providing relaxation to the candidates

belonging to the reserved categories, their request has not been acceded

to. He would also state, that the criteria for selection was 80 marks

weightage for SPAC and qualifying marks being 70% and 20 marks

weightage for personal interview. According to him, the petitioner in

W.P.(C) No.6436/2015 had obtained 10.80 marks out of 20 marks in

personal interview. Similarly, petitioner in W.P.(C) No.6705/2015 had

obtained 12 marks and the petitioners in W.P.(C) No.6487/2015 had

scored 10 & 10.2 marks respectively out of 20 marks. He would draw my

attention to para 8 of the counter-affidavit to contend the stand of the

respondent that the reasons for not getting selected was primarily the

petitioners had not secured the qualifying marks of 13 i.e. 65% in the

interview for SC/ST/OBC candidates. According to him, the requirement

of qualifying marks in the interview was neither the criteria nor stipulated

in the advertisement. It is his case, that the stipulation of such a criteria,

that too after the selection process has started, is illegal and contrary to the

settled position of law by the Supreme Court in the following cases:-

(i) AIR 2008 SC 2103 (1) Hemani Malhotra vs. High Court of Delhi;

(ii) AIR 2008 SC 1470 K. Manjusree, etc vs. State of A.P. and Ann;

(iii) AIR 2014 SC 1570 Bishnu Biswas and others vs. Union of India and ors.

4. On the other hand, Mr. Lalit Bhasin, learned counsel appearing for

the respondent would justify the selection and state that the petitioners

were not rejected on the basis of psychologist evaluation but it is a case

where the petitioners did not secure the required 13 qualifying marks in

the interview. On a specific query from the Court, whether the qualifying

marks for the interview were prescribed in the advertisement, the answer

was in the negative. But he would lay stress on the fact that in a

subsequent advertisement, the petitioners had applied for the same post

against 90 vacancies notified. The said selection comprised of written

test, which included an aptitude test and technical knowledge test.

Candidates, who had qualified the same were subjected to psychometric

test and further the candidates qualified/declared fit in psychometric test,

were required to appear for the personal interview. All the four

petitioners have applied for the said post. Mr. Rajesh Dagar, petitioner in

W.P.(C) No.6436/2015 had appeared in the Aptitude and Technical

Knowledge test, which he qualified but did not qualify the psychometric

test. Similarly, Mr. Rahul Panchal, petitioner in W.P.(C) No.6705/2015

applied and appeared for Aptitude and Technical Knowledge test but did

not qualify both the papers. Mr. Prasanna C. Nikhade, petitioner No.1 in

W.P.(C) No.6487/2015 even though applied for the post but did not

appear for the Aptitude and Technical Knowledge test. Similarly, Mr.

Ajay Dilip Chaudhari, petitioner No.2 in W.P.(C) No.6487/2015 did not

qualify the Aptitude and Technical Knowledge test.

5. It is his submission that the petitioner namely Rajesh Dagar, having

failed in the psychometric test in the subsequent selection, he cannot be

appointed, even if he succeeds in this petition as psychometric test has

become very relevant in the process of selection in view of a recent

incident happened in Germany. According to him, the said petitioner is

not entitled to any relief. Similarly, the other three petitioners would also

not be entitled to any relief.

6. Having heard the learned counsel for the parties, I note the primary

issue that is raised in the writ petition is that without there being a

stipulation in the Rules and Advertisement for a psychometric test/

presence of a psychologist in the interview board, the rejection of the

petitioners' candidature solely based on an assessment through

psychometric test/psychologist is not tenable. Suffice to state, that in para

8 of their counter-affidavit, the respondent has stated as under:-

"8. I say that the candidates were not rejected on the basis of the psychologist‟s evaluation. Only those candidates were not selected who failed to achieve the minimum qualifying marks 70% for General or 65% for SC/ST/OBC candidates in the Personal Interview. Total marks for Personal Interview were 20. Petitioner being an OBC candidate, to qualify in the Personal Interview was required to obtain 13 marks, however, the Petitioner in the Personal Interview scored 10.80 marks out of 20 marks. Therefore, was not selected."

7. From the perusal of the aforesaid stand, it is clear that the rejection

of the petitioner's candidature was not on the basis of any input or a

conclusion drawn by the psychologist. In other words, it is for other

reasons other than the psychological test the petitioners were not selected.

The other reasons, noted from the averments, are that the petitioners had

not secured the qualifying marks in the interview. In support of this stand,

the respondent in their counter affidavit has apart from para 8, in para 11

has stated as under:-

"11 (c) The criteria for selection was as follows:-

          Criteria for selection                   Weightage

         A) Simulator Proficiency                 80 marks
         Assessment
         Check
         (note: Qualifying marks for
         SPAC is 70%
         for       all    Categories
         (including SC/ST/OBC)
         B) Personal Interview                    20 marks
         Personality
         10 marks
         General
         10 marks
         Knowledge & awareness
         about present
          scenario of civil Aviation
         in India.
         (Note:        The minimum
         qualifying marks
         for     the     SC/ST/OBC
         category in the
         personal interview was 13
         marks out of 20 marks.)
         Total                                    100 marks

Candidates with minimum qualifying marks in the Personal Interview were considered as „Qualified‟. The qualifying marks were 14 for General Candidates and 13 for the SC, ST and OBC candidates, which is the relaxed standard laid down for the reserved category of OBC to which the petitioner belongs.

11(f) The petitioner belonging to OBC category, applied for the post of Sr. Trainee pilot (with endorsement of A-320) vide his application dated 02.03.2015. On scrutiny of the Petitioner Application, petitioner was found eligible and was informed to appear for SPAC on 10.04.2015, at Central Training Establishment, Air India Ltd, Hyderabad. Petitioner after qualifying the SPAC, vide email dated 22.04.2015, was directed to appear for Personal Interview on 07.05.2015. The Petitioner in the Personal Interview was required to obtain the above minimum qualifying marks - i.e 13 (65% for SC/ST/OBC) out of 20mark in the Personal Interview. The Petitioner in the Personal Interview scored 10.80 marks out of 20 marks and thus failed to qualify the interview. The respondent refers to and relies on the record of the selection exercise in this regard."

8. From the aforesaid stand, it is clear that the qualifying marks of 13

were prescribed for interview, which the petitioners have not secured.

The submission of Mr. Manglik, by relying on the reply dated July 31,

2015 to the RTI application made by one Mr. Chandra Shekhar Barua

dated against points No.3 and 10, that no cut off marks for the interview

were ever stipulated and even if stipulated, the same were after the

advertisement was issued whereby the selection process had commenced

are concerned, on the first aspect, the counter-affidavit filed by the

respondent is very clear; it reiterates at different places, the fact, that they

had prescribed 13 marks as the qualifying marks for interview. Even if, it

is the case of the petitioners, based on the judgments in Hemani Malhotra

(supra), K. Manjusree (supra) and Bishu Biswas (supra), that the

qualifying marks have been prescribed after the advertisement/selection

process has been initiated, firstly, in the case of Hemani Malhotra

(supra), the Supreme Court in para 9, has held as under:-

"9. From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive- voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal."

9. In the case of K. Manjusree (supra), the Supreme Court in para 29

has held as under:-

"29. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."

10. Insofar as the judgement in the case of Bishnu Biswas and ors

(supra) is concerned, the Supreme Court, in para 20 has held as under:-

"20. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so called selected

candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago."

11. Even though Mr. Manglik had referred to the aforesaid judgments

neither such a case has been set up by the petitioners in their petition nor

in the rejoinder, that the Rules pertaining to the selection have been

changed during the selection process or after the selection process to the

prejudice of the petitioners to benefit persons, who did not fare well in

SPAC. The case as set up in the petition has already been referred to and

dealt with in the previous paragraphs. The petitioners in their rejoinder

affidavit have primarily highlighted the reply given to the RTI application

to Mr. Chandra Shekhar Barua and the alleged contradictions in the reply

to the RTI application and the counter affidavit. Surely, a petitioner

canvassing a particular case must necessarily plead the same to enable the

other party meet the case. In the case in hand, what has been argued by