AP HIGH COURT
WRIT PETITION No.11677 of 2015
ORDER:
The petitioner is a practising Advocate. When the first
respondent issued a notification on 23.10.2010 inviting
applications for the posts of Assistant Director (Legal) along
with other posts of Assistant Director (Actuary) and Assistant
Director (Accounts), the petitioner applied. As per the
notification, five posts of Assistant Director (Legal) were notified
out of which two posts were earmarked for Scheduled Tribes,
one each was allocated to Scheduled Caste and OBC category
keeping the remaining post for unreserved. The petitioner
attended the written examination on 23.01.2011. The mode of
selection specified in the notification is as follows:
“Mode of Selection
a. Screening committee constituted by the
Authority will examine the applications and
candidates qualifying the criteria may be
considered for being called for written
test/interview.
b. Written Examination in relevant area of
specialization will be held. Candidates would
have to secure the minimum marks as decided
by the Competent Authority.
c. The Written Examination will be held in
Hyderabad. Candidates will be required to
appear for the Written Examination at their own
cost.
d. Merely fulfilling the eligibility conditions as
regards age/qualifications/experience, after
short-listing of candidates, would not
automatically entitle any candidate to be called
for the interview.
e. The selected candidates will be posted in the
office of the Authority located in Hyderabad and
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at such other places where the Authority may
establish its offices.
f. The Authority reserves the right to modify the
selection procedure, if deemed fit.”
The petitioner was successful in the written test conducted by
the first respondent on 23.01.2011 and he was called for
interview by letter dated 11.03.2011 through e-mail. Interview
was held on 24.03.2011 and 31 candidates appeared for the
interview. Out of 31 candidates, 13 candidates belonged to
OBC, 7 candidates to SC, 1 candidate to ST and 10 candidates
are general. The petitioner states that he is eligible for being
considered to the unreserved post as well as to the reserved
post under OBC category. No communication was received from
the first respondent after the petitioner attended the interview.
When a candidate belonging to ST category approached this
Court in W.P.No.28304 of 2011 challenging his non-selection,
this Court disposed of the said Writ Petition on 01.10.2013
allowing the Writ Petition. The Writ Appeal preferred in
W.A.No.1816 of 2013 was dismissed by this Court by order
dated 05.02.2014. Accordingly, the petitioner in the said Writ
Petition was appointed as Assistant Director (Legal) and he
joined the service in February, 2014. After coming to know of
the same, the petitioner obtained information under the Right to
Information Act. On the basis of the said information, he filed
the present Writ Petition challenging the action of the first
respondent in appointing respondent Nos.2 to 5 pursuant to the
notification dated 23.10.2010.
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In view of the delay in approaching the Court, this Court,
by order dated 22.04.2015, while issuing notice before
admission, recorded the statement made on behalf of the
petitioner by the learned Senior Counsel, Sri C.V.Mohan Reddy
that the petitioner is only interested in his case to be considered
insofar as the OBC vacancy that is available with the first
respondent and he is not so much interested in challenging the
orders of appointment of respondent Nos.2 to 4, which were
made more than three years back.
It was stated across the bar that the fifth respondent, who
was recruited under OBC category, left the Organisation in
2013 and the post has become vacant.
A counter affidavit was filed on behalf of respondent Nos.1
to 5 stating that the Writ Petition cannot be entertained as the
same is filed with inordinate delay and liable to be dismissed on
the ground of laches. The petitioner could not be selected since
his performance failed to satisfy the selection committee in the
interview. No irregularities are committed in the recruitment.
The petitioner is eligible for consideration in the OBC category
as he crossed the maximum age limit prescribed for general
category candidates in the notification. The petitioner was aged
about 37 years and 3 months as on 30.06.2010, and thus, he
was not eligible to apply under the general category as the
upper age limit of 35 years was prescribed in respect of those
candidates. 86 applications were received to the post of
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Assistant Director (Legal) and out of the said applications 75
were found to be eligible. In order to shortlist the candidates, a
written examination was held on 23.01.2011 and 31 candidates
were called for the interview. One candidate did not attend the
interview and the Selection Committee, after interviewing the
remaining 30 candidates, recommended for selection of six
candidates. Since the name of the petitioner did not figure in
the list of selected candidates, no information was sent. The
first respondent decided to appoint four persons in the ranking
order as Assistant Directors, three against unreserved category
and one against OBC category. The first respondent followed a
transparent and fair procedure in the selection process.
Though only one vacancy was notified under the unreserved
category, in view of the necessity to fill up the candidates, legal
opinion was sought by the Authority and based on the said legal
opinion, vacancies were filled up from the merit list drawn. A
reference to the order in W.P.No.28304 of 2011, dated
01.10.2013, has no bearing to the present case. The Selection
Committee comprised of three members as follows: i) Legal
Advisor of the Authority ii) Joint Director (Health) and iii) Officer
on Special Duty. The petitioner did not secure the highest
marks among the candidates under the OBC category, as
alleged by him. One Sri Yashowant Ram Patel secured 282
marks above the petitioner.
An additional counter affidavit was filed denying the
violation of reservation policy in the filling up of posts. The
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vacancy reserved for OBC category was filled up by appointing
one candidate belonging to OBC category, who was ranked third
by the Selection Committee. The filling up of more posts by
candidates belonging to unreserved category was only to fill the
urgent need of officers with legal background at that point of
time by utilizing the available unreserved vacancies and
carrying forward the unfilled reserved vacancies.
A reply affidavit was filed to the additional counter
affidavit by the petitioner stating that the first respondent
appointed respondent Nos.2 to 5 against the posts meant for
reserved candidates in violation of the reservation policy. The
Selection Committee recommended the names of two other
candidates apart from the fifth respondent under OBC category.
But, they have not challenged the appointment of the fifth
respondent.
Learned Senior Counsel, Sri C.V.Mohan Reddy, appearing
for the petitioner submitted that the entire recruitment process
was arbitrary and in view of the observations made by this
Court in W.P.No.28304 of 2011 dated 01.10.2013 filed by the
ST candidate, it is established that the first respondent has not
followed the prescribed procedure. He further submitted that in
view of the availability of vacancy due to relinquishment of post
by the fifth respondent, the case of the petitioner should be
considered. He relied on a number of decisions in support of
his contention.
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Learned Senior Counsel, Sri K.G.Krishna Murthy,
appearing for the first respondent submitted that the petitioner
is not the highest scorer in order to enable him to be appointed
in the existing vacancy caused by the fifth respondent and the
Writ Petition is liable to be dismissed on the ground of laches.
He further submitted that the petitioner is over-aged as on the
date of the application and his case has to be considered only
under the OBC category, but not under unreserved quota, as he
has crossed the upper age limit of 35 years. In the absence of
any malafides attributed to the Selection Committee, the
selections cannot be interfered with. He relied on Shiv Dass v.
Union of India1, Bharat Sanchar Nigam Limited v.
Ghanshyam Dass (2)2 and Mohd. Ameeruddin v. Osmania
University3.
The points that remain for consideration are:
i) Whether the selections were made in accordance
with the procedure?
ii) Whether the non-selection of the petitioner is valid
or not?
With regard to the first point, this Court had an occasion
to examine the issue in W.P.No.28304 of 2011 and observed
that the respondents went about making recruitments pursuant
to the subject notification in a totally whimsical and arbitrary
manner with scant respect for settled norms and in utter
disregard of the high level of transparency required from it as a
1 (2007) 9 SCC 274
2 (2011) 4 SCC 374
3 2002 (1) ALD 675
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State instrumentality. It was further observed that the records
reflect that the recruitment process adopted was not above
board and left ample room for arbitrariness. Accordingly, this
Court allowed the Writ Petition of the candidate belonging to ST
category, who applied to the post of Assistant Director (Legal).
The observations of the learned single Judge in the said Writ
Petition in coming to the said conclusion are relevant and worth
reproduction:
“The original record pertaining to the subject
selections was placed before the Court by Sri Siva,
learned counsel appearing for the IRDA. Perusal of the
record reflects that 31 candidates were cleared for the
interview for the notified posts of Assistant Director
(Legal). Of these, 30 candidates appeared for the
interview on 24.03.2011 and their performance was
assessed on the following parameters.
1. Technical skills and knowledge.
2. Interpretation skill.
3. Initiative
4. Communication skills.
Ranking seems to have been allotted to the
candidates individually by each of the members of the
Committee. On the basis of this ranking, six
candidates belonging to open category and OBC
category were short listed and recommended by the
Committee. The Minutes of the Selection Committee,
signed by the members, indicate that against the two
ST posts notified, only one candidate, viz., the
petitioner had appeared but the Committee found that
he did not fulfill the ‘required’ competence in terms of
the parameters.
The record relating to the recruitment to the
posts of Assistant Director (Actuary) reflects that 37
candidates were in the fray. 17 of these 37 candidates
had passed more than seven actuarial papers while 6
other candidates had passed six papers, on par with
D.Narasimha Lakshmi Murthy. One candidate had
passed as many as 11 papers. Further, there were
other candidates who had experience in the IRDA itself
or in other insurance companies who had cleared more
papers than him. There is no indication as to whether
these candidates were also exempted from appearing
for the interview or whether a special favour was
shown to only this individual.
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The note file indicates that the total number of
candidates called for the written test for the posts of
Assistant Director (Legal) was 75 but the total number
of candidates who actually appeared was only 44.
35%, approximating to 180 marks, was fixed as the
cut-off mark for open and OBC categories, while 30%,
approximating to 150 marks, was fixed as the cut-off
mark for SC and ST categories. This decision was
taken on 24.02.2011. There is no indication in the
record that the cut-off mark was reduced for SC and
ST candidates because such candidates failed to
secure 180 marks, as averred in the counter affidavit.
The legal advisor of the IRDA, the Joint Director
(HR) and the Officer on Special Duty (Legal) were the
members of the Selection Committee which conducted
interviews for these posts. The note file reflects that
out of the six candidates recommended by this
Committee, the first recommended candidate was
proposed to be considered under unreserved category
and the third recommended candidate under the OBC
category. Basing on legal advice, the IRDA decided to
fill up the notified vacancies from out of the merit list
and the increase in the number of posts was to be
accounted thereafter. The note file further reflects that
the IRDA initially considered recording the first four
rankers from unreserved category and OBC category
and for the SC category. Further, appointment was to
be offered to one of the four candidates from NALSAR
after completion of his degree by waiving the desirable
experience of two years, as it had already been
communicated to the NALSAR during the campus
interviews. This step was proposed so as to reduce the
requirement for Assistant Director posts by one.
However, this proposal was not acted upon.
Though the record contains the individual
interview rankings awarded by the three members of
the Selection Committee for the posts of Assistant
Director (Actuary), there is no such record found as to
the rankings allotted by the Selection Committee for
the posts of Assistant Director (Legal). The ranking
lists available in the record however indicate that
marks were awarded by individual members of the
Selection Committee.
The aforestated record manifests complete
disregard on the part of the IRDA not only to the
reservation policy but also settled service law
principles in the process of making appointments. The
IRDA itself admitted in the counter that it was
required to provide reservations by maintaining roster
points separately for specified posts. Having committed
itself to this stand, the IRDA surprisingly seeks to
justify its action in playing around with the notified
reserved vacancies to suit its own convenience! The
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liberty reserved by the IRDA, in the notification dated
23.10.2010, was only with regard to varying the
number of posts in each category depending on the
need and to modify the qualification prescribed for the
post. This liberty was obviously to enable the IRDA to
make more appointments than specified, in terms of
the vacancies notified, basing on the urgent need to fill
such unnotified vacancies and no more. This liberty,
unfortunately, is being construed by the IRDA to mean
that it could cast the notified reservation point to the
winds and make appointments as it chose. There is no
getting away from the fact that there was only one
open category vacancy notified, whereas the IRDA
made three appointments under the open category.
The justification for this action is that none of the
reservation category candidates, including the
petitioner, were found suitable for the reserved posts!
In so far as the petitioner is concerned, there is
no dispute as to the fact that he secured more than
the requisite cut-off marks in the written examination,
having obtained 156 marks as against the required
150 marks. While so, the manner in which the
interviews were conducted thereafter by the Selection
Committee leaves a lot to be desired. In this regard, it
is relevant to note that Clause-6 of the notification
dated 23.10.2010 stated as under:
“6. Mode of Selection
(a) Screening Committee constituted by the
Authority will examine the applications and
candidates qualifying the criteria may be
considered for being called for written
test/interview.
(b) Written Examination in relevant area of
specialization will be held. Candidates would
have to secure the minimum marks as decided
by the Competent Authority. … … … ”
Though minimum marks were prescribed for the
written examination, no such cut-off mark was
prescribed for the interview. On the other hand, it is
now baldly stated by the IRDA that no marks were
awarded for the interview, but rankings were allotted
by the members of the Selection Committee. As stated
supra, the individual records of the Selection
Committee are not available in so far as the posts of
Assistant Director (Legal) are concerned. The available
record pertaining to the posts of Assistant Director
(Actuary) however demonstrates that marks were in
fact awarded. In the absence of a cutoff mark being
prescribed by the competent authority for the
interview, there is no justification for the IRDA to shut
out the petitioner, a reservation category candidate, at
that stage despite his securing the minimum marks
prescribed for the written examination. The
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justification offered by the IRDA to support its action
in ignoring the petitioner despite his clearing the
written examination is that he did not fulfill the
parameters on the basis of which the Selection
Committee assessed his performance during the
interview. In essence, though no minimum mark was
prescribed for the interview, some sort of
gradation/ranking was admittedly introduced and
adopted during the interviews, though there is no
mention of the same in the notification, whereby the
petitioner stood ousted from consideration.”
In view of the above observations, as the present case also
arises out of the same notification, they are equally applicable
to this case also and this Court has no hesitation to hold that
the selection process was not in accordance with the
notification and concurs with the observations made above.
Coming to the next point of non-selection of the petitioner,
the record produced before this Court showed the merit list of
OBC candidates as follows:
S.No. Name of the Applicant Category Roll No. Correct
Answers
Positive
marks
1 Mr Yashovant Ram Patel OBC 2301110039 94 282
2 Mr Kanakalingeswara Rao OBC 2301110047 88 264
3 Mr Siddi Ramulu Gondlala OBC 2301110075 88 264
4 Mr S.Dhakshnamoorthy OBC 2301110028 82 246
5 Ms Omkar Singh Devi OBC 2301110045 82 246
6 Ms Dhanya
Kumbhakappillil
Ayyappan
OBC 2301110041 81 243
7 Mr P.Senthil OBC 2301110038 70 210
8 Mr Chandrakanta Das OBC 2301110032 69 207
9 Mr Shanmugavadivelu
Murugaiar
OBC 2301110048 67 201
10 Mr Rama Lakhimi
Sangana
OBC 2301110033 66 198
11 Mr Sunil Kumar
Yellammagudem
OBC 2301110042 63 189
12 Mr Venkataraju Vanga OBC 2301110049 63 189
13 Mr Kalyana Durga Prasad
Karri
OBC 2301110050 60 180
The Selection Committee, which interviewed the
candidates, merely recommended the names of the selected
candidates without any transparency and the above table, it is
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assumed, contains the marks obtained by the candidates in the
written examination or can be construed as a merit list. Even
assuming otherwise also, the fifth respondent did not secure the
maximum marks as could be seen above and no reason is
shown for selecting him disregarding the merit. This Court in
W.P.No.28304 of 2011 also noticed that the entire selection is
liable to be set aside, but, since the appointed persons were not
made parties and no challenge was made to their appointment,
their appointments were not set aside. In the present case also,
in view of the admission in the counter affidavit that three
candidates were appointed against one unreserved post, such
appointments are liable to be set aside, but in view of the
restriction placed at the time of admission, the present
challenge is confined to the fifth respondent. Now it is stated by
the learned Senior Counsel for the petitioner as well as by the
learned Senior Counsel for the respondents that the fifth
respondent left the organisation in 2013 itself and a vacancy
under the OBC category exists. The Writ Petition is sought to
be opposed on the ground that there are three meritorious
candidates above the petitioner and the petitioner is not entitled
for consideration of his case. But, the issue that is being
considered is with regard to the selection procedure adopted
and the consequential effect on the selection of the candidates.
It is clear from the averments made in the counter affidavit that
though one post was unreserved, three candidates were
appointed under OC category and as observed by this Court in
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the earlier Writ Petition, neither the selection procedure nor the
rule of reservation was properly followed. In view of the disposal
of this Writ Petition on the basis of the facts and contentions,
the decisions cited by both the learned Counsel on either side
are not considered.
In view of the above circumstances, this Court has to
normally set aside the entire selections, but in view of the
restriction placed at the time of admission of the Writ Petition,
the selection under OBC category is set aside, and the
respondents are directed to fill up the OBC vacancy on the basis
of the merit obtained in the written examination, within a period
of four weeks from the date of receipt of a copy of this order.
The Writ Petition is accordingly allowed to the extent
indicated above. The miscellaneous petitions pending in this
Writ Petition, if any, shall stand closed. There shall be no order
as to costs.
________________________________
(A.RAMALINGESWARA RAO, J)
26.09.2016