Lalam China Appala Naidu v. The Special Deputy Manager, NTPC Limited

Order

The petitioners in these cases are aggrieved by the action of the National Thermal Power Corporation Limited (NTPC) in not appointing them as Artisan Trainees and Diploma Trainees in its Simhadri Super Thermal Power Project at Visakhapatnam. The case of the petitioners in W.P.No.34131 of 2011, fourteen in number, is as follows: Their lands were acquired by the NTPC for construction of its Simhadri Super Thermal Power Project at Visakhapatnam. The landholdings so acquired ranged from a few cents to several acres. They received monetary compensation for the loss of their lands. In addition thereto, the NTPC evolved a scheme for providing them employment under the land oustee/land loser category. A notification in this regard was issued as long back as in the year 2001 notifying 101 vacancies in the posts of Artisan Trainee and Diploma Trainee.

Only 51 vacancies were filled up. Thereafter, another notification was issued in the year 2003 for approximately 50 vacancies. However, this selection process was not finalized. Ultimately, notification dated 01.04.2010 was issued by the NTPC for filling up 85 vacancies in the post of Artisan Trainee and 25 vacancies in the post of Diploma Trainee. A written examination was conducted on 01.08.2010 and thereafter, interviews were held for those who passed the exam. All the petitioners were called for the interviews. However, they were not provided appointment. The final selection list was released by the NTPC on 12.12.2011 indicating that only 47 vacancies in the post of Artisan Trainee and 7 vacancies in the post of Diploma Trainee were filled up.

According to the petitioners, candidature of those selected in the written test was rejected on one or more of the following grounds, viz., (i) that they were over-aged; (ii) that the lands purchased in their names were registered after 31.12.1995; and (iii) that they received compensation in excess of Rs.3.00 lakhs. It is the petitioners’ case that their candidature was overlooked on either

of the first two grounds indicated above. They therefore challenged the action of the NTPC in denying them appointment on the ground that they were over-aged or owing to the registration of their landholdings after 31.12.1995. The sole petitioner in W.P.No.5094 of 2012, a land oustee/land loser, received monetary compensation for the loss of his land. He aspired for appointment to the post of Artisan Trainee (Mechanical). He appeared for the written test held pursuant to the 2001 notification and was also called for interview. He was however not provided employment. He again appeared for the written examination pursuant to the 2010 notification and was also interviewed. His grievance is that he has not been appointed despite vacancies being available in the post of Artisan Trainee (Mechanical). The sole petitioner in W.P.No.8064 of 2012, another land oustee, also aspired for the post of Artisan Trainee (Mechanical). He participated in the selection process initiated pursuant to the 2001 notification but was unsuccessful in securing appointment. He appeared for the written test and was interviewed pursuant to the 2010 notification but did not find his name in the selection list dated

12.12.2011. It is his case that he was overlooked as the registration in respect of his land was after 31.12.1995. He claimed that several vacancies were left unfilled and sought a direction to the NTPC to appoint him as an Artisan Trainee (Mechanical). Though initially the case of the petitioners in two of the writ petitions was that their candidature was overlooked because of the policy decision taken by the NTPC to exclude candidates who over-aged, candidates whose land registration was subsequent to 31.12.1995 and candidates who received compensation over Rs.3.00 lakhs, the stand of the NTPC is that these criteria were not applied by it while selecting candidates for appointment to the posts of Artisan Trainee and Diploma Trainee. Ms.G.Sudha, learned counsel for the NTPC, reiterated this at the bar and pointed out that most of the petitioners would not have been called for the interview, had these criteria been applied. This ground of challenge therefore does not survive on facts. However, the process adopted by the NTPC while evaluating the candidature of land oustees/land losers warrants further examination. The case of the petitioners is that they were denied appointment unlawfully by the NTPC. This Court would therefore have to verify whether the selection procedure of the NTPC met the requirements of the constitutional mandate in public employment. As pointed out by the Supreme Court in SECRETARY, STATE OF KARNATAKA v. UMADEVI , this mandate would be equally [1] applicable to all State instrumentalities which fall within the ambit of Article 12 of the Constitution. The NTPC therefore has to satisfy this Court that its actions were not only transparent and aboveboard but also free of arbitrariness and discrimination. In its counter filed in W.P.No.34131 of 2011, the NTPC stated that appointment was provided to candidates under oustee/land loser category only if they qualified in the selection process as per the prescribed eligibility criteria. Existence of vacancies was therefore said to be of no consequence in this regard. While admitting that restrictions with regard to age, land registration and compensation had been stipulated in the notifications issued by it from time to time, the NTPC stated that these criteria were not strictly implemented as there was a dearth of qualified candidates. With regard to the actual selection process, the NTPC stated that the written examination was conducted initially for a maximum of 90 marks but the same was thereafter reduced proportionately to 75 marks. The interview marks were therefore increased from 10 marks to a proportionate 25 marks. It was pointed out that 277 candidates, including the petitioners, appeared for the interviews for selection to the posts of Artisan Trainee and Diploma Trainee but the petitioners did not meet the standard. It was pointed out that the petitioners failed to secure the minimum qualifying mark in the interviews and therefore, they could have no redressable grievance as to the rejection of their candidature. Counters on similar lines were filed in the other two writ petitions also. In their reply filed in W.P.No.34131 of 2011, the petitioners contended that the selection process was manipulated to see that no over-aged candidate was selected. They further contended that the notification did not indicate that there would be a qualifying mark in the interview. They also raised the contention that the marks of their written examination were wrongly shown and furnished details thereof. They also referred to various other inconsistencies with regard to the allocation of marks in terms of the minimum qualifying mark for the written examination. They contended that the 90 marks allocated for the written examination were thereafter reduced to 75 marks without any reason whatsoever and asserted that the same amounted to misuse of power. They alleged that awarding of marks in the interviews was manipulated to achieve the target of eliminating the candidates who were not to the liking of the NTPC. Though these reply affidavit averments made out a new case altogether, the petitioners were entitled to do so as the facts relating to the rejection of their candidature only came to light after the NTPC disclosed in its counters the relevant facts in this regard. In the light of these new allegations, the NTPC was given an opportunity to file an additional counter affidavit. In its additional counter, the NTPC stated that the written test was not conducted by it but was entrusted to a professional agency by name, ‘Merit Trac’. This agency is said to have conducted the test for 864 candidates and allocated them marks on a maximum of 90. The same were thereafter reduced to 75 marks proportionately and those who passed were called for interviews in the ratio of 1:3. The petitioners in all the three cases were called for the interviews. The assessment was done for a maximum of 100%, i.e., 75% for the written test and 25% for the interview. The petitioners failed to secure the minimum qualifying mark in the interviews and were therefore denied employment. The NTPC further stated that when the petitioners sought information under the Right to Information Act the actual marks awarded to them in the written test on a maximum of 90 marks were furnished to them by mistake and not on the reduced 75%, which were actually taken into account. This was stated to be the reason for the inconsistencies pointed out by the petitioners in W.P.No.34131 of 2011. The NTPC asserted that there was 100% transparency in its recruitment process and sought dismissal of the writ petitions. In the light of the allegations as to lack of transparency and misuse of power in the selection process, Ms.G.Sudha, learned counsel for the NTPC, was asked to produce the record. She accordingly placed before the Court the record pertaining to the subject selections. Perusal thereof reflects that out of the total 864 candidates who applied for the 110 vacancies notified under the 2010 notification, only 779 candidates appeared for the written test conducted on 01.08.2010. The written test comprised two sections – Domain Test for 60 marks and Aptitude Test for 30 marks. The qualifying mark in the written examination was also split up between these two tests. General category candidates had to secure 24 marks out of 60 in the Domain Test and 9 marks out of 30 in the Aptitude Test to qualify; while reservation category candidates had to secure 18 marks out 60 in the Domain Test and 6 marks out of 30 in the Aptitude Test. However, as the number of candidates who secured the stipulated qualifying marks as mentioned above fell far short of the proposed 1:3 ratio for being called for the interview, the qualifying marks were reduced. These qualifying marks were split up amongst the posts as under: Category Domain Test Aptitude Test Qual. Marks (General) 20 16 19 18 29 21 25 AT (Mech.) AT (Elect.) AT (C&I) DT (Mech.) DT (Elect.) DT (C&I) DT (Civil) Qual. Marks (OBC/SC/ST) 15 12 14 13 21 15 19 Qual. Marks (General) 09 09 09 15 14 13 15 Qual. Marks (OBC/SC/ST) 06 06 06 11 10 09 11 However, while calling the candidates for interviews, the candidates were called in order of merit and the cut off marks for each post varied. The details of such cut off marks were as under: Post Total Cutoff Marks in written Test AT Mech AT Elect AT C&I DT Mech DT Elect DT C&I DT Civil GEN 31 33 33 33 47 45 42 OBC 27 30 -- 27 36 33 -- SC 32 29 31 34 41 39 -- ST 29 27 25 27 -- -- -- The record reflects that weightage for the written test was put at 75% and the interview was for 25%. The qualifying mark in the interviews was fixed at 12.5 marks for general category candidates and 9 marks for reservation category candidates. This fixation of evaluation criteria appears to have been done on 03.09.2010. A note signed by the Manager (HR) and the AGM (HR) of the NTPC bears out this fact. This note reflects that the proposal for fixation of evaluation criteria emanated thereunder and the criterion so fixed was as under: “1) Total marks for written test and interview may be kept as maximum of 100 marks. 2) Written test was already conducted for 90 marks (60 marks for Domain and 30 marks for Aptitude Tests). These 90 marks may be reduced to 75 marks. 3) Interview may be conducted for a maximum of 25 marks out of which the qualifying marks may be fixed as 12.5 marks for general and 9 marks for OBC/SC/ST candidates.” The competent authority was requested to peruse the same and accord approval. The signature of the GM In-charge, bearing the date

03.09.2010, is found on this note approving this procedure. On such approval, the same was briefed to the Selection Committee. It is in the light of this factual background that the procedure adopted by the NTPC would have to be tested against the required standards of transparency which should infuse a selection process for public employment. It is no doubt true that it is within the competence of the NTPC to decide the maximum marks that should be allocated for the interview. There can be no hard and fast rule in this regard. As pointed out by the Supreme Court in KIRAN GUPTA v. STATE OF U.P. , it would [2] depend on several factors and the permissible percentage would have to be decided on the facts of each case. Further, as pointed out by the Supreme Court in ANDHRA PRADESH PUBLIC SERVICE COMMISSION v. BALOJI BADHAVATH [3] , unless the procedure of recruitment is shown to be arbitrary, discriminatory or wholly unfair, the superior Courts would not ordinarily interfere therewith. In the present case, admittedly, the written test was conducted by ‘Merit Trac’ on behalf of the NTPC on 01.08.2010. This written test was for a total of 90 marks. The qualifying marks prescribed for the two components of this written test were also fixed. Thereafter, the reduction in the qualifying marks was also in the context of the maximum of 90 marks. It however appears that the decision to scale down the total marks for the written test from 90 to 75 and to increase the marks for the interview from 10 to 25 was taken by the NTPC only on 03.09.2010. The record does not reflect as to why this step was necessitated. There is no indication in the note on fixation of the evaluation criteria as to why this measure was initiated. Further, the fixation of a minimum mark for the interview was also decided only on

03.09.2010. This was at a point of time when the NTPC already had before it the results of the written test. There was thus ample scope for manipulating the end result of the selection process by allocating marks arbitrarily during the interviews to select particular candidates for appointment. It is also to be noticed that the qualifying mark for the written test ranged between 34.44% and 46.66% for general category candidates; 30% and 40% for OBC candidates; 32.22% and 45.55% for SC candidates; 27.77% and 32.22% for ST candidates. However, when it came to the interview, the qualifying mark was 50% for general category candidates and 36% for reservation category candidates. This disparity in the qualifying mark for the written test and the interview is also not explained. Perusal of the actual record of selection reflects that some of the candidates who were found suitable and were provided employment did not secure the reduced qualifying mark in the written test. Yet, they were selected on the basis of the qualifying mark in the interview alone. Further, a cursory glance at the Selection Committee proceedings reflects that the candidates with roll numbers 1203259, 1203099, 1203276, 1203075, 1203195 and 1203004, who had all aspired for the posts of Artisan Trainee (Mechanical) in the OBC category, secured 25 marks in the written test. However, except for the candidate with roll number 1203259, who was given 14 out of 25 marks for the interview, all the others were given marks of 7 and 8 only, whereby they were excluded from the zone of consideration. Similar such instances abound in the Selection Committee proceedings. For instance, the candidate with roll number 1203309 secured 25.83 marks in the written test but was found suitable as he secured 13.5 marks in the interview. However, the candidate with roll number 2203476 who secured 35 marks in the written test failed to attain suitability as he was awarded only 7 marks in the interview. The scope for manipulation and arbitrariness in the interviews is therefore writ large. In K.MANJUSREE v. STATE OF ANDHRA PRADESH [4] , the Supreme Court observed thus: “33. ……… 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 wants to prescribe minimum marks 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.” it should do so before interview, In the present case, admittedly, the fixation of a qualifying mark for the interviews was after the selection process had begun and after the NTPC was fully aware of the marks secured by the candidates in the written test. Not only did the NTPC introduce a qualifying mark for the interview but it also changed the proportion of marks, by scaling down the written test marks from 90 to 75 and upgrading the interview marks from 10 to 25. No reason is put forth by the NTPC to account for this alteration of the selection methodology nor does the record placed before the Court reflect any application of mind requiring this modification. The Supreme Court, in HEMANI MALHOTRA v. HIGH COURT OF DELHI , found fault with the alteration of the selection procedure [5] midway whereby minimum marks for viva voce were prescribed after the written test was over. The ratio of the said judgment, following K.MANJUSREE4, would therefore apply on all fours to the case on hand. As the appointments made pursuant to this illegal process adopted by the NTPC are not under challenge before this Court and those appointees are not even before this Court, it is wholly unnecessary for this Court to go into the validity of such appointments or interfere therewith. The grievance of the petitioners is only with regard to denial of their candidature on the ground that they failed to meet the minimum standard prescribed for the interview. This minimum standard or qualifying mark for the interview was patently illegal as it was introduced after the selection process had begun and as per K.MANJUSREE4, it is impermissible to change the rules of the game after it is played. The action of the NTPC in rejecting the candidature of the petitioners on the ground that they did not secure the minimum qualifying mark in the interview is therefore illegal. The NTPC shall re- consider the cases of the petitioners in the light of their performance in the written test and in the event they qualified in the written examination they shall be considered for appointment in the available vacancies of the posts to which they aspired for. The NTPC shall complete this exercise expeditiously and in any event, not later than two (2) months from the date of receipt of a copy of this order. The Writ Petitions are accordingly allowed. Pending miscellaneous petitions, if any, shall stand dismissed in the light of this final order. Under the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 28TH AUGUST, 2012 VGSR Note: Issue CC in two days. // BO // BSB [1] [2] [3] [4] [5] (2006) 4 SCC 1 (2000) 7 SCC 719 (2009) 5 SCC 1 (2008) 3 SCC 512 (2008) 7 SCC 11