Shalu vs Pragati Power Corporation ...
2015 Latest Caselaw 6785 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment reserved on August 24, 2015
                                Judgment delivered on September 10, 2015
+                          W.P.(C) 9365/2014

SHALU                                                 ..... Petitioner
                           Through:     Mr.N.S.Dalal, Adv.

                           versus

PRAGATI POWER CORPORATION LIMITED ..... Respondent
                 Through: Mr.Vinay Sabharwal, Adv.
                          with Mr.Neha Sahbarwal,
                          Adv.

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. The challenge in this petition is to the order dated September 8,

2014 whereby the services of the petitioner as Executive Trainee

(Finance) were terminated and to the order dated November 21, 2014

whereby the appeal filed by the petitioner against termination of her

services as Executive Trainee (Finance) was dismissed.

2. Some of the relevant facts are that an advertisement was issued on

August 26, 2009 for making appointment to different posts including

Executive Trainee (Finance). The advertisement did not prescribe the

number of posts of Executive Trainee (Finance) against which

appointment was to be made. It is the case of the petitioner in the writ

petition that the petitioner having fulfilled the requisite conditions

applied for the said post in the category of „Scheduled Caste‟. On

December 19, 2010, National Power Training Institute, a body under the

Ministry of Power, Government of India conducted the written test on

behalf of respondent and prepared a merit list. In April, 2011, the

petitioner was called for interview and having been declared successful

was given an offer of appointment as Executive Trainee (Finance) on

June 07, 2011. Pursuant thereto, after appearing in the medical test, the

petitioner joined the said post. According to her, she has been

discharging her duties since then to the best of her ability and received

appreciation and commendation letters from the authorities.

3. On September 08, 2014 the petitioner was served with an order

whereby her services were terminated under decision 2 of Rule 11 of

CCS (CCA) Rules, 1965 („Rules‟ in short). The petitioner filed Writ

Petition (Civil) No.6227/2014 wherein, according to the petitioner, this

Court in its order dated September 16, 2014 asked the petitioner to file

an appeal which the petitioner did on September 23, 2014. The appeal

was dismissed vide one of the impugned orders dated November 11,

2014.

4. The case of the respondent as pleaded in the reply is that the

Vigilance Department of the respondent had carried out investigation on

the complaints received regarding irregularity in the recruitment of

Executive Trainee (Finance) in the respondent organisation. During

investigation, it was observed that the respondent had engaged NPTI to

conduct written test for recruitment to various posts including two posts

of Executive Trainee (Finance) vide letter dated April 12, 2010. Initially

NPTI was intimated vide letters dated April 12, 2010 that there are two

vacancies of Executive Trainee (Finance), one for Unreserved and

another for OBC. NPTI conducted written test on December 19, 2010.

Pursuant thereto, it vide letter dated December 22, 2010 proposed to

prepare a merit list for interview in the ratio of 1:5 for General and OBC

category candidates. However, some changes were effected in the

category-wise vacancies and the vacancy of OBC was later on changed

to SC category under the garb of revising the reservation roaster. The

respondent had pointed out that the then Deputy Manager (HR),

Recruitment submitted a note dated December 27, 2010 to GM (HR)

through the then DGM (Incharge) HR proposing to call General category

candidates in the ratio of 1:5 and SC category candidates in the ratio of

1:10 for interview. While proposing the ratio of 1:10 in respect of SC

category in his note dated December 27, 2010, he made a reference of

DoPT OM dated January 06, 2006 pertaining to fixing of zone of

consideration in the case of promotions and further, in his note dated

December 30, 2010 he submitted that the same ratio was being followed

in other PSUs and the fact, the same has been recommended by NPTI.

According to the respondent, the DoPT OM dated January 06, 2006 is

applicable in the matter of promotions. Even the OM stipulates that for

each vacancy either in General or SC category, the zone of consideration

is 1:5 and the NPTI had never recommended the ratio of 1:10 for SC

candidates in its letter dated December 22, 2010. It was their case that

the then Deputy Manager (HR), Recruitment misguided/misled the

management by quoting wrong facts that NPTI had also recommended

zone of consideration as 1:10 in respect of SC/ST candidates, though

actually NPTI in its letter dated December 22, 2010 proposed to prepare

a merit list in the ratio of 1:5 in respect of General and OBC category

only. The NPTI had never recommended the ratio of 1:10 for SC

candidates. Thereafter NPTI was requested vide letter dated January 29,

2011 to send the merit list of written test in the ratio of 1:5 in the case of

General Category candidates and in the ratio of 1:10 in the case of SC

category candidates. The NPTI forwarded the list of 11 candidates

belonging to SC category, as the candidates at serial Nos.10 and 11 were

having equal marks in the written test. The petitioner was at serial No.8

in the merit list for written test. The candidate at serial No.2 in the merit

list of written test was having 94 marks, whereas the petitioner in the

merit list was having 76 marks in the written test. In the interview, the

candidate at serial No.2 in the merit list was awarded only 18 marks by

the Interview Panel and the petitioner was awarded 34 marks. Infact the

marks awarded to the petitioner were the highest amongst the nine

candidates, who appeared in the interview in the SC category for the post

of Executive Trainee (Finance). Hence, the enlargement of zone of

consideration from 1:5 to 1:10 by misrepresenting/quoting wrong facts

has resulted into calling of the petitioner for interview, who was at serial

No.8 in the merit list of SC category in the written test and she is a

daughter of senior level officer of the company. She was finally got

selected for the post of Executive Trainee (Finance) in SC category and

was appointed as Executive Trainee (Finance) in the SC category. The

respondent had also referred to the fact that the matter was referred to

CVC for advice. The Commission in its OM dated April 08, 2013 and

OM dated July 10, 2013 was of the view that the ward of a senior officer

of the company was accommodated out of way by extending the zone of

consideration from 1:5 to 1:10 without any precedence and by

misrepresenting the facts before the competent authority. The

Commission recommended detail enquiry under the major penalty

procedures against three officers involved in the process of recruitment.

The respondent has stated that they have penalised one officer by

imposing a penalty of "Censure", whereas against two officers, charge-

sheet under Rule 14 of the Rules are pending.

5. Mr.N.S. Dalal, learned counsel for the petitioner would at the

outset submit that the Rule which has been invoked in terminating the

services of the petitioner i.e. decision No.2 under Rule 11 of the Rules is

not applicable. According to him, the said Rule contemplates, whenever

it is found that a Government servant who was not qualified or eligible in

terms of the recruitment rules etc. for initial recruitment in service or had

furnished false information or produced a false certificate in order to

secure appointment, he should not be retained in service. If he is

probationer or a temporary government servant, he should be discharged

or his services should be terminated and the impugned orders need to be

set aside on this ground only. According to him, the petitioner had not

suppressed any fact. In other words, she has not misrepresented to the

authorities any fact. It is not a case where the petitioner does not fulfil

the requisite conditions to the post, nor a case where the petitioner did

not pass the written examination, which is must for the Interview. He

would state, the petitioner had faced the Interview and she had proved

her merit by doing well in the Interview and on that basis, she has been

selected. It is also his submission that in a case of direct recruitment,

the zone of consideration should be more so that the best candidate can

be selected. He has stated, there is no rule that against one vacancy, only

five candidates need to be called. He would rely upon the judgment of

the Supreme Court reported as (1985) 4 SCC 417 Ashok Kumar Yadav

& Ors. Vs. State of Haryana and Ors. and connected civil appeals,

more specifically, para 21 wherein the Supreme Court has held that

selection cannot be said to be vitiated, merely 1300 or more candidates

representing more than twenty times the number of available vacancies,

were called for the Interview. He in his submission has justified the

calling of the petitioner for Interview, even if her position is at merit

position No. 8 in the written examination. He also, placed reliance on

the judgment of the Punjab and Haryana High Court reported as 2015(1)

SLR 290 (P&H), Mukesh Bala Vs. State of Haryana and Ors. and 2015

(2) SLR 111 to contend that merely because the candidates who secured

more marks than the petitioner in the written examination but had

secured less marks in the Interview would not ipso facto lead to the

conclusion that the exercise has been done intentionally, to favour the

petitioner. He would also state that none of the persons belonging to

Scheduled Caste who appeared in Test and who successfully passed the

Test and also appeared in the Interview had any grievance, and there is

also no dispute that there is one vacancy/post reserved for the candidate

of SC category. According to him, the reasoning of the respondents in

the impugned orders that the father of the petitioner is working in the

company and would have been instrumental in allowing extended zone

of consideration, is incorrect. The likelihood of the father of the

petitioner would have been instrumental in increasing the zone of

consideration, is not borne out from the record. He states, the father of

the petitioner was not remotely connected to the selection process. The

father is holding a post of a much lower level than that of the competent

authority, on whose decision the petitioner was appointed.

6. On the other hand, Mr. Vinay Sabharwal, apart from reiterating

the stand taken by the respondents in their counter affidavit, has also

filed a compilation of documents, which included the copy of the

advertisement, the copy of Recruitment and Promotion Regulation for

the post of Executive Trainee (Finance), copy of correspondence

exchanged between the respondents and NPTI, the copy of note dated

December 24/27, 2010 of Mr.G.Srikumar, DM (HR) PPCL, copy of

valuation sheet of SC candidate with written test marks and Interview

marks, communication issued by the CVC, advising initiation of

departmental proceedings, and documents related to charge sheet issued

to various officers in terms of the advice of the CVC. He has drawn my

attention to a communication dated December 22, 2010 of the NPTI,

wherein, the NPTI proposed to prepare the merit list for the various post

by taking ratio 1:5 and had sought the concurrence of the respondents.

He has also drawn my attention to the note sheet dated December 24/27,

2010, wherein, Mr. Srikumar, the Deputy Manager (HR), had re-

determined the vacancies to include one for General and one for SC, and

proposed the zone of consideration for General and OBC in the ratio of

1:5, whereas for SC/ST candidate, in the ratio of 1:10 and a

communication in that regard was sent by the respondent-corporation to

the NPTI vide letter dated January 29, 2011. According to him, this

proposal was contrary to the proposal sent by the NPTI, recommending a

ratio of 1:5, which resulted in the enhancement of the zone of

consideration to 10 (although 11 candidates were called) by bringing in

the petitioner as well, who was at serial No. 8 of the candidates who

cleared the written examination. He states that this decision to increase

the zone of consideration, suggests that there was a connivance and

misleading of facts on the file and preponderance indicates that had the

candidate be not ward of the senior officer of the company, the zone of

consideration would not have been enlarged. He states that some

changes were also effected in category-wise vacancies and the vacancy

of OBC was later on changed to SC category in the garb of revising the

reservation roaster. He would justify the stand of the respondent to

terminate the services of the petitioner with effect from September 5,

2014.

7. Having heard the learned counsel for the parties, the first and

foremost issue which arises for consideration is whether the respondents

could have fill up the one out of two vacancies/posts by a candidate

belonging to the SC category even though, as per communication dated

April 12, 2010 to the NPTI by the respondent, reveals the said

vacancy/post was meant to be filled by an OBC candidate. Interestingly,

the advertisement issued by the respondent does not reveal the break-

up/the category under which the posts/vacancies were to be filled. The

advertisement is faulty to that extent inasmuch as, had the advertisement

depicted the category of vacancies against which appointments have to

be made, candidates who even though beyond the age limit, but entitled

to the age relaxation, would have also applied. It was after the process of

written examination was over, a communication was sent to the NPTI,

giving the break-up of the vacancies/posts, under which the recruitment

has to be done. Be that as it may, if in the earlier communication dated

April 12, 2010, the respondent has communicated to the NPTI on the

post-wise reservation of the different categories of posts advertised and

pursuant to the said communication, the NPTI had also decided to call

against one vacancy, five candidates, the subsequent communication

dated January 29, 2011 to the NPTI was not only at variance with the

earlier communication dated April 12, 2010 of the respondent, but also

to the communication dated December 22, 2010 of the NPTI. That apart,

DM (HR) while proposing the increase in the zone of consideration, had

relied upon the instructions of DoPT dated January 6, 2006, which

relates to the zone of consideration in the cases of promotions. The said

OM is not applicable to the direct recruitment as the perusal of the same

would reveal, the same is in the nature of DPC guidelines to be followed

while making promotions. Para 3(iii) of the said OM clarifies that the

existing size of extended zone of consideration for SC/ST officers, viz.

five times the total number of vacancies will continue to be applicable.

The OM does not suggest that the zone of consideration for SC/ST

candidates shall be in the ratio of 1:10.

8. Further, I note, the petitioner had made a detailed appeal to the

appellate authority i.e. the Managing Director. Further the appellate

authority, has in his order, highlighted the following aspects:

"(i) Initially NPTI was intimated vide letter dated 12.04.2010 and 27.07.2010 that there are two vacancies of ET(Fin.), one post for General and another for OBC.

(ii) NPTI vide its letter dated 22.12.2010 proposed to prepare merit list for Interview in the ratio of 1:5 for General and OBC category candidates for selection of 02 ET (Finance).

(iii) However, the vacancy of OBC was later on changed to SC category on the garb of revising the reservation roaster.

(iv) The concerned dealing officers vide his notes dated 27.12.2010 and 30.12.2010 proposed to call the candidates for interview in SC category in the ratio of 1:10 on the basis of DoPT OM No. 22011/2/2002-Estt (D) dated 6.6.2006. The said OM pertaining to DPC even also states that for each vacancy either in General or SC category, the zone of consideration is 1:5.

(v) The concerned dealing officers further misguided/misled the Management by quoting wrong facts that NPTI had also recommended zone of consideration as 1:10 in respect of SC/ST candidates though actually NPTI in its letter dated 22.12.2010 proposed to prepare a merit list in the ratio of 1:5 in respect of General and OBC category only. The NPTI had never recommended the ratio of 1:10 for SC candidates.

(vi) The Vigilance Department of IPGCL/PPCL has also observed that zone of consideration in the SC category was extended in the recruitment process of ET (Fin) without any precedence and by misrepresenting the DoPT OM dated 6.1.2006 and by quoting wrong facts that NPTI had also recommended zone of consideration as 1:10 in respect of SC/ST candidates.

(vii) Ms. Shalu, who was at No. 8 in the merit list for written test, was selected by the Interview Panel by awarding maximum marks in comparison to the other candidates appeared in the Interview. The candidates who were at Sr. No. 1 to 5 of the merit list and got more marks in written test, were therefore, deprived.

(viii) There is preponderance of probability that the zone of consideration was enlarged in the case of SC category candidates just to accommodate her.

(ix) The enlargement of zone of consideration from 1:5 to 1:10 by misrepresenting/quoting wrong facts has resulted into calling of Ms. Shalu for interview, who was at Sr. No. 8 in the merit list of SC category in the written test and she is daughter of a senior level officers of the company. She was finally got selected for the post of ET (Finance) in SC category. The ward of a senior officer of the company was therefore

facilitated to appears in the interview and finally got selected for the post of ET (Fin) whereas she was not eligible to be called for interview had the zone of consideration not been extended for SC candidate".

9. The respondents had tried to justify the impugned action of

termination on preponderance. The facts as noted above justify the said

conclusion which is a sufficient yardstick (even in the cases under the

Conduct Rules) to effect termination, it is not the case of the petitioner

that the respondents should have held an enquiry under the Conduct

Rules before effecting termination.

10. Insofar as the submission of Mr. Dalal that instruction No. 2 under

Rule 11 could not have been invoked as the said instruction is applicable

when a person appointed was later found to be ineligible/unqualified for

initial recruitment is concerned, the said instruction further contemplate

that if such an employee is probationer or temporary government

servants, he should be discharged or his services should be terminated.

It is not the case of the petitioner that she is a permanent employee. That

apart, when the initial appointment itself could not be made, the

respondents are within their right to recall the appointment by

terminating the same. Even assuming the respondent could not have

invoked decision No. 2 under Rule 11 of CCS (CCA) Rules, 1965, the

employer is not powerless to terminate such an appointment when, the

appointment is made de-hors the procedure, otherwise, it would amount

to justifying the appointment, which was illegal.

11. Insofar as the judgements relied upon by Mr. N.S.Dalal, learned

counsel for the petitioner are concerned, in Ashok Kumar Yadav &

Ors.'s case (surpa), the Supreme Court was concerned with the

recruitment made by the Haryana Public Service Commission to 61 posts

in Haryana Civil Service (Executive) and other allied services. The

procedure for recruitment was governed by the Punjab Civil Service

(Executive Branch) as applicable in the State of Haryana. Rule 9, Clause

(1) of the rules provided that a competitive test examination shall be held

at any place in Haryana in or about the month of January for the purpose

of selection by competition of, as many candidates for the Haryana Civil

Service (Executive) and other allied services as the Governor of

Haryana may determine. Rule 10 laid down the conditions for eligibility

to appear in the competitive examination. The compulsory subjects

included English Essay, Hindi, Hindi Essay and General Knowledge

carrying the aggregate 400 marks as there was Viva-Voce. It appears

that in response to the advertisement issued by the Haryana Public

Service Commission, about for 6000 candidates applied for the

recruitment and appeared in the written examination. Out of 6000

candidates, who appeared in written examination, about 1300 obtained

more than 45% marks and thus qualified for being called for

Interview/Viva Voce. The Haryana Public Service Commission invited

all the 1300 or more candidates who qualified for Viva Voce

Test/Interview and the Interview lasted for almost a year. The number of

vacancies rose during written examination as well as Viva Voce test. 119

candidates were selected and recommended by the Haryana Public

Service Commission to the State Government. It seems, there were

certain candidates who had obtained higher marks in the written

examination, but, owing to rather poor marks obtained by them in the

Viva Voce Test, they could not come within the first 119 candidates and

they were consequently, not selected. Three persons out of the aggrieved

persons, by the selection made by Haryana Public Service Commission,

filed Writ Petition (C) 2495/1983 in the High Court challenging the

validity of the selection and seeking a writ for quashing and setting aside

the same. It was the case of the petitioners in the said writ petition, that

marks given in the Viva Voce test should be ignored and the selection

should be made only on the basis of the marks obtained by the

candidates in written examination. The respondents in that case tried to

justify the selection. The Division Bench of the High Court allowed the

writ petition on various grounds including that the members of the

Commission did not satisfy the stringent test of men being of high

integrity, calibre and qualification. The Supreme Court while

considering the various pleas as urged before it, including the submission

that 1300 candidates were called for the Interview, was of the view, that,

merely because 1300 candidates were called for Interview, though

according to the Supreme Court, was not the right course to follow and

not more than twice or at the highest thrice the number of candidates,

should have been called for the Interview, ultimately held on facts that

the conclusion of the Division Bench vitiating the selection on the

ground of arbitrariness or reasonable likelihood of bias, was not correct.

12. Suffice to state, the Supreme Court did observe upon the action of

the Commission to call all 1300 candidates for Interview, it should have

been limited to twice or at the most, thrice of the vacancies advertised.

In any case, it is not the conclusion of the Supreme Court that in a case

of direct recruitment, all the candidates who have secured the pass

marks, need to be called for the Interview. In the case in hand, the

decision of NPTI to call only five candidates for Interview for every

category of candidates, appears to be reasonable. The judgment relied

upon by Mr. N.S.Dalal was peculiar to the facts of that case and would

be of no help to the petitioner. Rather, it holds the view, that only a

limited number of candidates should be called for Interview.

13. Insofar as the judgment relied upon by Mr. Dalal in the case of

Gulphan Singh (supra) is concerned, in the said judgment, the Court

was concerned with the case where the petitioner was appointed as

Vetenary Compounder which came to be re-designated as Vetenary Life

Stock Development Assistant. There was no allegation of

misrepresentation levelled against the petitioner. However, the Vetenary

Assistant Training Course came to be derecognized by the respondent-

State vide order dated March 7, 1988 whereas the petitioner was

appointed earlier to the said date, that too, on the basis of the Interview

conducted by the petitioner. He was sought to be removed. The High

Court relying upon the judgment of the Supreme Court in the case of

Suresh Pal and Ors. Vs. State of Haryana and Ors. RSJ (1950-1988)

Vol. I was of the view that when there are no allegations against the

petitioner that he misrepresented about his qualification at any point of

time, and the qualification duly recognized, the High Court set aside the

termination. The facts as relied upon by Mr. Dalal are totally different

than the case in hand and would not be applicable, particularly, keeping

in view the grounds which weighed with the authorities while

terminating the services of the petitioner.

14. Insofar as the case of Mukesh Bala (supra) is concerned, the same

is also not applicable to the facts of this case as it is not the case of the

respondent that the Interview Committee having awarded the petitioner

more marks than the candidates who had secured more marks in the

written examination, a conclusion need to be drawn that exercise has

been done intentionally, specially, when none of the members of the

Selection Committee were impleaded as party-respondent nor specific

allegation in this regard reflected in the petition.

15. In view of the discussion above, I do not find any merit in the writ

petition. The same is dismissed.

(V.KAMESWAR RAO) JUDGE SEPTEMBER 10, 2015 akb