Ms. Shilpa Kumari vs Oil India Ltd. And 5 Ors
2022 Latest Caselaw 2938 Gua

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GAHC010287862019




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/8671/2019

         MS. SHILPA KUMARI
         D/O. SURENDRA PRASAD, D PLUS 107 OPPOSITE OIL INDIA LTD.
         HOSPITAL DULIAJAN-786602, DIST. DUBRUGARH



         VERSUS

         OIL INDIA LTD. AND 5 ORS.
         DULIAJAN REP. BY ITS CHAIRMAN CUM NANAGING DIRECTOR,
         DULIAJAN-786602, DIST. DIBRUGARH, ASSAM.

         2:THE GENERAL MANAGER PERSONAL DEPTT. FIELD HEAD QUARTER

          DULIAJAN-786602
          DIST. DIBRUGARH.

         3:THE CHAIRMAN
          REP. BY GM (MEDICAL SERVICES) MEDICAL DEPTT.
          OIL INDIA LTD. DULIAJAN-786602
          DIST. DIBRUGARH
         ASSAM.

         4:THE EXECUTIVE DIRECTOR
          (ADMINISTRATIVE)/PGO OIL INDIA LTD. DIST. DIBRUGARH.

         5:THE CHIEF GENERAL MANAGER (LAND AND LEGAL)
         AND CENTRAL PUBLIC INFORMATION OFFICER
          OIL INDIA LTD. DULIAJAN-786602.

         6:TO THE PRINCIPAL GUWAHATI MEDICAL COLLEGE

          PIN-781032
          DIST. KAMRUP
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Advocate for the Petitioner    : MRS. S BORPATRA GOHAIN

Advocate for the Respondent : SC, O I L

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

Date of hearing : 09.08.2022

Date of judgment : 12.08.2022

JUDGMENT AND ORDER

Heard Mr. R.C. Borpatra Gohain, learned Senior Counsel for the petitioner. Also heard Mr. S.N. Sarma, learned Senior Counsel for Oil India Limited.

2. The petitioner's case in brief is that pursuant to an Advertisement dated 29.11.2018, issued by the Oil India Limited, for recruitment to the post of Superintending Medical Officer (Gynaecology), the petitioner applied for the said post. The marks allotted in the selection process, as reflected in the Advertisement dated 29.11.2018 were as follows :

         Selection                Total Marks       Qualifying Marks






                                                                Page No.# 3/12

3. The petitioner took part in the Written Test on 17.03.2019 and secured 51 marks in the Written Test. The Personal Interview was held on 07.06.2019 and the petitioner secured 5 marks in the interview. No Group Discussion was held by the respondents. The petitioner thereafter undertook the Pre-Employment Medical Examination (PEME) on 10.06.2019 in terms of the extract of Clause - B of the Advertisement dated 29.11.2018, which states as follows :

"The provisionally selected candidate will have to undergo Pre- Employment Medical Examination (PEME) by OIL Medical Board and appointment will be issued to the provisionally selected candidate subject to being found medically fit by OIL Medical Board."

The petitioner's health was also found to be fit for appointment in the PEME.

4. The petitioner's counsel submits that the petitioner was the lone candidate, who had taken part in the Personal Interview and in the PEME. The petitioner having secured the qualifying marks in the written test and personal interview, the petitioner should have been appointed to the post of Superintending Medial Officer (Gynaecology). However, the respondents did not appoint the petitioner. On enquiry, the petitioner came to learn that the total marks that had been allotted for Personal Interview, had been raised by the respondents to 15 marks and the qualifying marks for Personal Interview was raised to 7.5 marks.

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5. The petitioner's counsel submits that as the petitioner had secured the required qualifying marks, i.e. 5 marks in the interview, in terms of the Advertisement dated 29.11.2018 and as the petitioner had also been found to be fit for appointment in the PEME, appointment order should be issued by the respondents.

6. The learned Senior Counsel for the petitioner submits that the rules of the game cannot be changed after the game has been played and in this respect, he has relied upon the judgments of the Apex Court in the case of Mohd. Raisul Islam & Others vs. Gokul Mohan Hazarika & Others, reported in (2010) 7 SCC 560; Tez Prakash Pathak & Others vs. Rajasthan High Court and Others, reported in (2013) 4 SCC 540 and the judgment of this Court passed in WP(C) 3864/2018 (Sri Jibon Kalita & Others vs. The State of Assam & 5 Others). He accordingly prays that the petitioner should be appointed to the post of Superintending Medical Officer (Gynaecology), pursuant to the Advertisement dated 29.11.2018.

7. Mr. S.N. Sarma, learned Senior Counsel for Oil India Limited submits that though the total marks provided for the Personal Interview, in terms of the Advertisement dated 29.11.2018 was 10 marks, with qualifying marks of 5, the same had to be changed in terms of the "Guidelines for Recruitment in the Executive Cadre" (herein after referred to as the "Guideline"), made by the Oil India Limited on 01.03.2016, which provides that when Group Discussion is not conducted, the marks allotted for the Group Discussion/Group Task (GD/GT) would have to be added to the marks allotted for Personal Interview. Thus, interview marks will be 15% of the total marks.

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Accordingly, weightage in the selection process for the various components had to be allotted as follows :- Written Test was to have 85% of the marks, 5% for Group Discussion (GD) and 10% for Personal Interview. He submits that 5% marks reserved for Group Discussion would have to be added to the 10% marks reserved for the Personal Interview, thereby taking the total marks for interview to be 15. As such, the qualifying marks for interview would be 7.5 marks and not 5 marks, as provided in the "Guideline" dated 01.03.2016. He also submits that as per the General information and instructions provided in the Advertisement dated 29.11.2018, Oil India Limited reserved the right to cancel/restrict/enlarge/ modify/alter the recruitment process if the need so arose, without issuing any further notice or assigning any reason whatsoever. He also submits that the marks of the petitioner were made known to the petitioner on 22.10.2019. Also, as per the dates of the selection process given in the Advertisement dated 29.11.2018, Personal Interview was held on 07.06.2019 and the PEME was held on 08.06.2019. As such, nothing much should be read into the medical examination (PEME) of the petitioner, as the petitioner's interview marks was below the benchmark. He also submits that the "final statement of marks", which has been signed by a 5 Member Selection Committee, shows that the total marks allotted for Personal Interview was 15 and pass mark was shown as 7.5 marks. As the petitioner did not secure the qualifying marks for Personal Interview, the petitioner could not be appointed. The counsel for the Oil India Limited thus submits that the writ petition should be dismissed.

8. I have heard the learned counsels for the parties.

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9. The question to be decided in this case is whether the marks that were allotted for Group Discussion could have been added to the marks allotted for Personal Interview in the Advertisement dated 29.11.2018, in terms of the Clause B(05) of the "Guidelines for Recruitment in Executive Cadre" dated 01.03.2016, as has been submitted by the learned counsel for the Oil India Limited. To answer the above issue, it would have to be seen as to whether the above "Guidelines for Recruitment in Executive Cadre" is the circular that has been made the basis for allotment of marks in the Advertisement dated 29.11.2018.

10. Clause B (05) of the "Guidelines for Recruitment in Executive Cadre" issued by the Director (HR & BD) of Oil India Limited, vide letter No.CMD/OIL/PER/14D/RP-145 dated 01.03.2016, states as follows:

As already approved, weightage of various components will be as under :

         SELECTION TOOL           WEIGHTAGES    IN  THE
                                  SELECTION PROCESS

GATE Score/Written test                      85%

Group          Discussion/Group               5%
Task*

Interview                                    10%

     ·      Wherever GD/GT is not conducted, weightage of interview will be
          15%
                                                                    Page No.# 7/12

A reading of the above "Guidelines for Recruitment in Executive Cadre" shows that if Group Discussion (GD) is not conducted, the marks allocated for GD would be added to the marks for Personal Interview.

11. As per the "Guidelines for Recruitment in Executive Cadre", the marks allotted for written test should be 85% of the total marks, 5% of the total marks for Group Discussion and 10% of the total marks for interview. However, as can be seen from the marks allotted in the Advertisement dated 29.11.2018, 10 marks out of the total marks of 140 have been allocated for written test, 30 marks out of 140 marks for Group Discussion and 10 marks out of 140 for Personal Interview. If the "Guidelines for Recruitment in Executive Cadre" had been applied for weightage/allotment of marks in the Advertisement dated 29.11.2018, 85% of 140 marks for written test would be 119 marks, 5% of 140 marks for Group Discussion would be 7 marks, while 10% out of 140 marks would be 14 marks. Accordingly, the marks in the Advertisement dated 29.11.2018 would have been allotted as follows :

Selection Tool            Weightages in the        Percentage of
                                                   marks out of
                          Selection Process as per total of 140
                          "Guidelines          for marks
                          Recruitment           in
                          Executive Cadre" dated
                          01.03.2016




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Group Task*

12. Thus the above chart clearly shows that the allotment of marks, as reflected in the Advertisement dated 29.11.2018, has not been made in terms of the "Guidelines for Recruitment in Executive Cadre". Also, if the marks allocated for Group Discussion were to be allocated to the marks for Personal Interview, the total marks for Personal Interview should have been 7 + 14 = 21 marks and not 15 marks.

13. In the present case, the respondents have basically taken the stand that the rules of the game have not been changed in the middle of the selection process and that the marks allocated for Group Discussion had been added to the marks allocated for personal interview in terms of the "GUIDELINES FOR RECRUITMENT IN EXECUTIVE CADRE", as no Group Discussion had taken place. The contention of the respondents counsel is basically to the effect that as the allocation of marks were done in terms of the weightage given as per the "Guideline", the marks allocated for GD could be added to the marks for Personal Interview, as no GD was held. However, as shown in the foregoing paragraphs, the marks allotted in the advertisement dated 29.11.2018 had not been made in terms of the "GUIDELINES FOR RECRUITMENT IN EXECUTIVE CADRE". Further, even assuming that the "GUIDELINES FOR RECRUITMENT IN EXECUTIVE CADRE" was to be applied for adding the Group Discussion marks to the marks for personal interview, the Page No.# 9/12

"final statement of marks" made by the Selection Committee for the interview, shows that the interviewee was assessed only on the basis of 15 marks, while the same should have been 40 marks, in terms of the marks given in the advertisement dated 29.11.2018. The Advertisement dated 29.11.2018 shows that 30 marks had been allocated for Group Discussion, while 10 marks had been allocated for Personal Interview. As such, the marks allocated for Personal Interview by adding both the marks for Group Discussion + Personal Interview, in terms of the "Guidelines for Recruitment in Executive Cadre", would have totalled to 40 marks.

14. In the case of Punjab State Electricity Board & Another Vs. Ashwani Kumar, reported in (2010) 7 SCC 569, the Apex Court was to decide whether seniority of direct recruits and promotees would be governed by the unamended rules, as selection has been initiated prior to the amendment of the rules. The Apex Court in the above case held that once a process of selection has started on the basis of the existing rules of recruitment, the said rules will continue to govern the selection process, notwithstanding any amendment which may have been affected to the said rules in the meantime.

15. In the case of Tej Prakash Pathak & Others Vs. Rajasthan High Court & Others, reported in (2013) 4 SCC 540, the Apex Court referred to a larger bench, the question of whether the criteria for selection can be altered by the authorities concerned in the middle or after the process of selection has commenced.

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16. In the case of Shri Jibon Kalita & Ors. Vs. State of Assam & 5 Ors., WP(C) No. 3864/2018 which was decided vide judgment & order dated 10.05.2022, this Court held that the State respondents could not justify the cancellation of the earlier selection process made in terms of the Employment Notice, by publishing a new advertisement for the same post, as the selection process had been completed and the only thing that remained was the issuance of the appointment order.

17. In the case of Madan Mohan Sharma & Another vs. State of Rajasthan & Others, reported in (2008) 3 SCC 724, the Apex Court has held that once an advertisement has been issued on the basis of the circular operating at that point of time, the effect would be that the selection process should continue on the basis of the criteria which was laid down and it cannot be the basis of the criteria which has subsequently been made. In the present case, the Advertisement dated 29.11.2018 has not been made on the basis of the "Guidelines for Recruitment in Executive Cadre" and as such, the implication of the judgment of the Apex Court in Madan Mohan (supra) would be that the respondent cannot now take the stand that the "Guidelines for Recruitment in Executive Cadre" would be applicable, by adding the marks allotted for the Group Discussion to the marks allotted for Personal Interview.

18. In the case of Assam Public Service Commission & Ors. Vs. Pranjal Kumar Sarma & Ors., reported in 2019 (17) Scale 542, the Apex Court had held that the recruitment process pursuant to the advertisement issued by the APSC on 21.12.2018, must necessarily be Page No.# 11/12

conducted under the selection norms as applicable on the date of the advertisement.

19. In view of the reasons stated in the foregoing paragraphs, this Court finds that the respondents have not applied the "Guidelines for Recruitment in Executive Cadre" at the time of allotment of marks in the Advertisement dated 29.11.2018 and at the time of interviewing the petitioner. In any event, Clause-B of the Advertisement dated 29.11.2018 relating to the selection process clearly provides that the company reserves the right not to conduct Group Discussion (GD) in case of very less number of candidates. The respondents had not conducted Group Discussion as the petitioner was the lone candidate left in the fray. As there is nothing provided in the Advertisement dated 29.11.2018, that marks allocated for Group Discussion would be added to the marks allocated for Personal Interview in case GD is not held, this Court is of the view that the 15 marks allocated for Personal Interview was neither in terms of the "Guideline" or the Advertisement. Hence the petitioner's interview should have been assessed only on the basis of marks allocated for interview in the Advertisement dated 29.11.2018, i.e. 10 marks. As stated earlier, the interview of the petitioner had been undertaken by the respondents by allocating 15 marks, as can be seen from the "Final Statement of marks" made by the Selection Committee. In view of the fact that the Selection Committee had not assessed/conducted the interview within the allocated 10 marks provided in the advertisement, this Court is of the view that a fresh interview should take place in respect of the petitioner only, pursuant to the Advertisement dated 29.11.2018 and the petitioner should be Page No.# 12/12

interviewed on the basis of only 10 marks, wherein the qualifying marks would be 5, as provided in the said Advertisement. The respondents are accordingly directed to conduct an interview of the petitioner and the total interview marks shall be 10 with qualifying marks of 5. The interview/viva-voce test should be done within a period of 1 (one) month from the date of receipt of a certified copy of this order. The respondents shall thereafter take a decision with regard to the Selection Process undertaken by the petitioner in pursuant to the Advertisement dated 29.11.2018. Consequently, the later Advertisement No. EXRECT/MED- GY/2019-03, by which the selection to the post of Superintending Medical Officer (Gynaecology) was sought to be made, is hereby set aside.

20. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant