Telangana High Court
V. Srinivas vs The Union Of India on 21 December, 2023
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 18698 of 2023
ORDER:
In this writ petition, the petitioner is seeking a writ of
mandamus declaring the list of candidates shortlisted for
appearing in the selection meeting for the post of Director
(Personnel) in the Respondent No.5 organization as reflected in
the letter bearing No.7/27/2022-PESB, dated 30.06.2023
issued by the Respondents No.2 to 4, as illegal, arbitrary,
unconstitutional and in violation of Articles 14 and 21 of the
Constitution of India and consequently to set aside the same
and to direct the Respondents No.2 to 4 to prepare a fresh list of
candidates for appearing in the selection meeting by including
the name of the Petitioner in it and also to reschedule the
selection meeting and to pass such other order or orders in the
interest of justice.
2. Brief facts leading to the filing of the present writ
petition are that the respondent No.5 is a Central Public Sector
Enterprise, headquartered at Hyderabad and the respondent
No.2 is the high powered body constituted by the respondent
No.1 for the purpose of evolving managerial policy for Central
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Public Sector Enterprises and to advise the respondent No.1 in
respect of the appointments to top managerial positions. The
post of Director (Personnel) in the respondent No.5 organization
fell vacant on 01.08.2020 and the respondent No.2 issued an
Advertisement No.101/2022, dated 30.08.2022 calling for
application from eligible candidates. Para 3 of the Advertisement
provides for educational qualifications, while Para 4 provides
the required experience, which should be atleast five years of
the cumulative experience during the last ten years in various
aspects of HR/Personnel Management/Industrial Relations in
an organization of repute and Para 5 provides for the pay scale
in which the applicant must be in order to be eligible. The
petitioner was working as a General Manager (Personnel) in the
respondent No.5 organization and was thus eligible for applying
to the said post and therefore, he claims to have submitted his
application online on 15.03.2023 and the same was forwarded
to the respondent No.2 on 16.03.2023. According to the
information furnished by the respondent No.1, a total of 12
applicants will be shortlisted, out of which 6 applicants will be
from the same Central Public Sector Enterprise or its subsidiary
and thereafter, the respondent No.2 was required to conduct a
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selection meeting in consultation with the Secretary of the
concerned Ministry/Department and an interview of the
shortlisted candidates was to be conducted during the selection
meeting and ultimately, one name was to be sent by the
respondent No.2 to the concerned Ministry for its consideration.
3. The learned counsel for the petitioner relied upon
the guidelines regarding Board Level Appointments in Central
Public Sector Enterprises in support of his contentions. It is
submitted that the petitioner was eagerly awaiting the result of
the shortlisting exercise, but the petitioner's name was not
considered and on 11.07.2023, the petitioner through
interactions with his colleagues came to know that some of the
applicants from within the respondent No.5 organization had
received a letter from the respondent No.2 intimating them
about the selection meeting. Therefore, he made certain
enquiries and was shocked to know that the petitioner's name
was not in the list of shortlisted candidates, but there were
other candidates who according to the petitioner, did not qualify
for the said post. He thereafter, addressed a letter on
12.07.2023 to the respondent No.2 pointing out the infirmities
in the shortlisting of the candidates and requested that the said
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letter be withdrawn and a fresh list including his name be
issued. Since there was no response from the respondent No.2,
the petitioner has filed the present writ petition.
4. This Court, vide Interim Orders dated 14.07.2023
in I.A.No.1 of 2023, granted interim suspension of the letter
bearing No.7/27/2022-PESB, dated 30.06.2023, issued by the
respondents No.2 to 4 and the respondents No.2 to 4 were
restrained from taking any further steps pursuant to the said
letter, including conducting the selection meeting on
14.07.2023 till 21.07.2023. The learned Deputy Solicitor
General appearing for respondents 1 to 4 and learned Standing
Counsel appearing for respondent No.5 were directed to orally
communicate the said order to the respondents No.2 to 4 as the
selection meeting was stated to be held on the said day i.e., on
14.07.2023 at 03.30 p.m., itself. The matter then came up for
hearing on 21.07.2023 wherein it was informed to the Court by
the learned Deputy Solicitor General Counsel appearing for the
respondents No.1 to 4 that before the interim order could be
communicated to the respondent No.2, the interviews and
selection meeting were already completed and sought time to file
counter affidavit on behalf of the respondents.
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5. Thereafter, the Learned Deputy Solicitor General
filed counter affidavit on behalf of respondents No.1 to 4.
Learned Standing Counsel entered appearance on behalf of
respondent No.5. The matter was heard at length on merits.
6. Learned counsel for the petitioner reiterated the
submissions made in the writ affidavit and submitted that the
petitioner had necessary educational qualifications as well as
relevant experience to be considered for appointment, while the
respondents No.6 to 8 did not possess the necessary
experience/qualifications and therefore, they could not have
been shortlisted.
7. Learned Deputy Solicitor General appearing for the
respondents No.1 to 4, has relied upon the averments made in
the counter affidavit and submitted that after receipt of
applications from the eligible candidates in response to the
Advertisement No.101/2022, the call letters were issued by the
respondents to the respective offices of the eligible candidates
informing them about the date and time of the selection
meeting. It is submitted that there are a total of 12 slots which
are available for consideration of selection and for short-listing,
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out of which 6 slots were reserved for internal candidates of the
respective department. It is submitted that there was only one
vacancy for which a total of 23 candidates had applied. It is
submitted that the petitioner is at 16th position in the seniority
of eligible candidates of his organization and due to the limited
slots, the petitioner was not shortlisted and therefore, the
petitioner was not informed of the selection meeting and there is
no provision or procedure contemplated to communicate the
same also to all such candidates who are not shortlisted. It is
submitted that the shortlisting of Board Level Selection was
done by the respondents i.e., PESB as per the prescribed
procedure and guidelines which are being followed from time to
time and for the post of Director (HR/Personnel), apart from
experience as given in the job description, the criteria spelt out
in the internal guidelines of the PESB dated 04.02.2022 was
strictly followed. It is submitted that the said guidelines have
been duly communicated to all the Ministry/Departments of the
Government of India and the CPSEs vide proceedings dated
05.08.2022 and the same are also available in the PESB
website. It is submitted that PESB has divided the candidates
for HR/Personnel post into the following three categories:
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Category III: Applicants having experience as functional
head of projects/plants having direct responsibility of atleast 20%
of the workforce;
Category II: Applicants with minimum 2 years in
HR/IR/Pers+3 years as functional head of projects/plants having
direct responsibility of 1000 workforce;
Category I: Priority to applicants with 5 years experience
during the last 10 years in HR/IR/Personnel.
8. It is submitted that for the post of Director
(HR/Personnel), the endeavor is not only to have the Core HR
experience as managerial requirement but also the candidates
having sufficient experience in senior position and having dealt
with human resources in their respective domain who are made
eligible as Category-III and Category-II. However, as per
guidelines dated 04.02.2022, the candidates for Category-I are
given preference in shortlisting followed by Category-II
candidates and Category-III candidates. Therefore, the PESB
has endeavored to balance the need where not only Core HR
officers are considered for shortlisting, but also the officers from
other streams who have worked sufficiently at a senior position
are also considered. It is submitted that the respondents No.6 to
8 were thus, shortlisted based on the guidelines issued on
04.02.2022 and there is no arbitrariness, since the respondents
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No.6 to 8 meet the mandatory educational qualifications
required for the post of Director (Personnel), NMDC. It is
submitted that the petitioner was not in the eligible zone of
consideration as the officers from the same Category-I senior to
him were shortlisted for the selection meeting to be held on
14.07.2023. It is submitted that the respondent No.2 had to
commence the interviews at 03.30 p.m., on 14.07.2023 within
the closed doors and after the commencement of selection
process, no one was permitted to enter into the Committee room
in view of the security reasons and by the time, the interim
orders were communicated by the office of Deputy Solicitor
General of India were to be informed, the process of interview
had already been completed and therefore, the interviewers have
been concluded, but the results were kept in abeyance until
further orders in compliance with the interim orders of this
Court.
9. As regards the guidelines which are available on the
website of DoPT indicating the process of selection for
appointment of Board Level Appointments of Central Public
Sector Enterprises. It is submitted that these guidelines were
published way back in the year 2017 and since then almost the
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same procedure has been followed from time to time except for
minor changes. The respondents therefore, prayed for the
vacation of interim order and to permit them to complete the
selection process in accordance with the guidelines.
10. Learned counsel for the petitioner also filed reply
affidavit stating that the Advertisement dated 30.08.2022
unambiguously referred to only one experience criteria, i.e., five
years of cumulative experience during the last ten years in
HR/Personnel Management/Industrial Relations, but there is
no whisper regarding the three Categories as laid down in the
purported internal meeting dated 04.02.2022, nor was there
any reference to that internal meeting at all. It is submitted that
there can be no deviation from the eligibility criteria and
procedure for selection as mentioned in the advertisement for
which the vacant post was notified. It is further submitted that
respondent No.2 was guided by a set of guidelines issued by it,
which has been compiled as "Guidelines Regarding Board Level
Appointments in Central Public Sector Enterprises" and as per
the updated version as uploaded on 23.09.2022 in the
respondent No.2's website there is no other criteria of
experience. Therefore, according to him, the criteria fixed in the
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internal meeting on 04.02.2022, could not have any binding
nature.
11. Learned counsel further submitted that the cut-off
date for deciding the eligibility of a candidate is the date of
occurrence of the vacancy, which in the present case is
01.08.2020 and by then, the criteria fixed in the later meeting
dated 04.02.2022 were not in vogue and therefore, no reliance
could be placed on the said internal meeting minutes dated
04.02.2022. Therefore, he submitted that the respondents
should be directed to conduct the interview strictly in
accordance with the guidelines which were in force as on the
date of the vacancy i.e., on 01.08.2020 and consider the
petitioner also for the said vacancy, since he possessed
necessary educational qualifications as well as experience
criteria.
12. Learned Standing Counsel appearing for the NMDC
also reiterated the contentions raised by the learned counsel for
the respondents No.1 to 4.
13. Learned counsel for the petitioner relied upon the
following judgments:
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1. Bedanga Talukdar Vs. Saifudaullah Khan and
Others 1;
2. Sanay K.Dixit and Others Vs. State of Uttar Pradesh
and Others 2;
3. P.M.Latha and Another Vs. State of Kerala and
Others 3;
4. Indresh Kumar Mishra and Others Vs. State of
Jharkhand and Others 4;
5. V.K.Sehgal Vs. Union of India 5;
6. Subrata Chakravarty Vs. Union of India and
Others 6;
7. Dr.Amarjit Singh Ahluwalia Vs. The State of Punjab
and Others 7;
14. Having regard to the rival contentions and the
material on record, this Court finds that the Government of
India i.e., respondent No.2 has issued the Advertisement
No.101/2022, dated 30.08.2022 for the post of Director
(Personnel) for NMDC Limited for a vacancy which has arisen as
1 (2011) 12 SCC 85
2 (2019) 17 SCC 373
3 (2003) 3 SCC 541
4 (2022) 12 SCC 42
5 1996 (37) DRJ 606
6 2016 SCC Online Cal 6525
7 (1975) 3 SCC 503
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on 01.08.2020. The qualifications and the experience mentioned
are as under:
3. Qualification: The applicant should be a graduate with good
academic record from a recognized University/Institution. Post
Graduate Diploma or Degree in Personnel management/Human
Resource Management or Masters in Business Administration
(MBA)/Post Graduate Diploma/ Programme in Management
(PGDM/PGPM) from a recognized University/Institution is desirable.
4. Experience: The applicant should have atleast five years of
cumulative experience during the last ten years in various aspects of
HR/Personnel Management/Industrial Relations in an organization of
repute.
Except for these qualifications, there is no reference to
any other qualifications.
15. Learned counsel for the respondents had stated
that the experience required included experience in various
aspects of HR/Personnel Management/Industrial Relations in
an organization of repute. It is submitted that the respondents
No.6 to 8 also had experience in Industrial Relations and
therefore, they were found eligible and were within the
shortlisted candidates. It is submitted that it is not in dispute
that the petitioner was also eligible for the said post, but they
were more seniors to him in his Department, whereas only six
posts were available, therefore, he could not be considered
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within the shortlisted candidates. He submitted that the Hon'ble
Supreme Court in the case of Ruchir Agrawal Vs. Public
Enterprises Selection Board and Others 8, it was held that the
decision taken by the experts need not be questioned until and
unless there is a clear bias on part of the experts and malafide is
established by adducing sufficient evidence or the constitution of
the committee is under challenge. In this case, there is no
challenge to the constitution of the committee and therefore, the
said decision is not applicable.
16. As regards the decisions relied upon by the learned
counsel for the petitioner, the Hon'ble Supreme Court in the
case of Bedanga Talukdar (cited supra), has held that the
selection process has to be conducted strictly in accordance with
the stipulated selection procedure and there cannot be any
relaxation in the terms and conditions of the advertisement
unless such a power is specifically reserved and if there is a
relaxation of such procedure, then it should be mentioned in the
advertisement and in the absence of such power in the rules, it
could still be provided in the advertisement. The power of
relaxation, if exercised, has to be given due publicity to ensure
8 2023 SCC Online Del 5252
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that those candidates who become eligible due to the relaxation,
are afforded an equal opportunity to apply and compete.
Relaxation of any condition in advertisement without due
publication would be contrary to the mandate of equality
contained in Articles 14 and 16 of the Constitution of India. In the
case of Sanjay K.Dixit and Others (cited supra) this Principle
has been reiterated by the Court. In the case of Indresh Kumar
Mishra and Others (cited supra) also, the Division Bench of the
Hon'ble Supreme Court has held that the terms and conditions
of the advertisement cannot be changed. The other decisions
relied upon by the learned counsel for the petitioner also
support his above contentions.
17. Therefore, the settled law is that after giving the
advertisement, the respondents could not have changed the
experience criteria as is done in this case. However, the
contention of the petitioner that the rules as on the date of the
vacancy have to be considered is not correct, but it is the rule
as on the date on which the respondents have decided to fill up
the vacancy, will have to be considered. The advertisement is
dated 30.08.2022, whereas the internal guidelines were
allegedly issued on 04.02.2022. Therefore, the respondents were
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required to publish the amended guidelines dated 04.02.2022,
at the time of issuing the advertisement dated 30.08.2022, but
the respondents have failed to do so.
18. In view of the same, this Court deems it fit and
proper to set aside the interviews conducted on 14.07.2023 and
direct the respondents to re-issue the advertisement for the post
of Director (Personnel) giving all the necessary details in the
advertisement and thereafter, proceed with the selection process
for the post of Director (Personnel) in accordance with such
guidelines.
19. Accordingly, this writ petition is partly allowed.
There shall be no order as to costs.
20. Miscellaneous petitions, if any, pending in this writ
petition including I.A.Nos.2 & 3 of 2023 shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 21.12.2023
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