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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to selection, the applicant has sought following reliefs:
“(i)To quash the erroneous clause 5 of Respondent letter dated 13.07.2018 that Trade Test Exam is of qualifying (as contained in Annexure No. A-1).
(ii)To direct the Respondent to finalize the selection process as per the advertisement and Recruitment Rules (method of final selection) in force at the time of advertisement of vacancies.
(iii)Further direct the Respondent to finalize the recruitment process within a time frame.
(iv)Pass any other order which this Hon‟ble Tribunal may think just and proper in the circumstances of the case.
(v)Direct the respondents to pay the cost of this application.”
The facts of the case are that the respondent issued advertisement no. 03/2015 inviting applications for the posts of Technician (1) in Pay Band of Rs. 5,200 – 20,200 with Grade Pay of Rs. 1,900. The last date for submission of application was 30.12.2015. In the meantime the Department of Personnel & Training (DoPT) issued office memorandum (OM) dated 09.10.2015 on discontinuation of interviews for various junior level posts in the Government of India followed by another OM dated 29.12.2015 on the same subject. Based on DoPT’s aforementioned OMs, the Council for Scientific & Industrial Research (CSIR) amended the CSIR Service Rules, 1994 for Scientific, Technical and Support Staff vide letter 09.11.2017 through which the criteria of interview/trade test was changed to qualifying in the trade test followed by written examination (of those who qualified in the trade test) and the criterion of interview was done away with. The applicant was informed vide order dated 13.07.2018 that the trade test was scheduled to be held on 10.08.2018 and that the trade test was of qualifying nature. The applicant participated in the trade test and he was declared qualified in the result declared on 14.08.2018. He was, then, called for appearing in the written examination which was initially scheduled on 30.10.2018, but postponed to 28.01.2019. The applicant appeared in the written examination on 28.01.2019. The question papers and the answer keys of written examination were notified by the respondent vide letter dated 01.02.2019 inviting objections. Aggrieved by the change in criteria of selection after the issue of advertisement, the applicant has preferred this OA. During the pendency of the OA, the respondents declared the list of selected candidates vide order dated 16.12.2019 subject to the outcome of this OA filed by the applicant which has also been objected to by the applicant vide M.P. No. 2736 of 2019.
The applicant’s contention is that it was not open for the respondent to change the rules of the game notified at the commencement of the recruitment process while the recruitment process was midway. He submits that the rules prevalent at the time of issuance of the advertisement have to be followed and the subsequent change in the rules would not alter the rules of the game. In support, the applicant has cited Tej Prakash Pathak & Ors vs Rajasthan High Court & Ors 2024 INSC 847.
The respondent contends that he has acted in terms of the clarification issued by CSIR on 08.04.2016 which has not been challenged by the applicant. His next objection is that the applicant appeared in the written examination without any protest except objections dated 04.02.2019 only with respect to the questions and answers. He also objects that the applicant has not impleaded other six candidates who appeared in the written examination alongwith him. He states that the objections from the candidates were considered by the Selection Committee based on the recommendation of the external expert and the select list was declared through notice dated 16.12.2019. In support of the respondent’s contention, reliance has been placed on Ranjan Kumar & Ors vs State of Bihar & Ors 2014 16 (SCC) 187; Tajvir Singh Sodhi & Ors vs The State of Jammu & Kashmir AIR 2023 SC 2014; and Tej Prakash (supra).
We have heard both the parties. The issue which falls for our consideration is whether it was permissible for the respondent to change the rules of the game in respect of the selection criteria after issuance of the advertisement.
6.0 Proposition of Law
Our task is made easier as both the parties have referred to Tej Prakash Pathak (supra) in which Hon’ble Supreme Court has distilled certain propositions of law of direct relevance to the controversy at hand. First, let us look at what is meant by the rules of the game. This expression is elucidated in paragraph 5 of Tej Prakash Pathak (supra) in the following manner:
“5.In various judicial pronouncements, the law governing recruitment to public services has been colloquially termed as ‘the rules of the game’. The „game‟ is the process of selection and appointment. Courts have consistently frowned upon tinkering with the rules of the game once the recruitment process commences. This has crystallised into an oft-quoted legal phrase that “the rules of the game must not be changed mid-way, or after the game has been played”. Broadly speaking these rules fall in two categories. One which prescribes the eligibility criteria (i.e., essential qualifications) of the candidates seeking employment; and the other which stipulates the method and manner of making the selection from amongst the eligible candidates.” (emphasis supplied)
Thus, there are two categories of the rules of the game pertaining to recruitment in public services: the eligibility criteria (i.e., essential qualifications), and the method and manner of making the selection.
As far as the method and manner of making the selection is concerned, the latitude available to the recruiting authority in making changes and the constraints governing such changes are illuminated in paragraph 30 of Tej Prakash Pathak (supra):
“30.What is clear from above is that the object of any process of selection for entry into a public service is to ensure that a person most suitable for the post is selected. What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/Statute governing service and reservation. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise. The decision in K. Manjusree (supra) does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates malpractices in preparation of select list.” (emphasis supplied)
Thus, the recruiting authority can devise the method/procedure for selection of a candidate suitable for the post provided that such method/procedure is not inconsistent with the extant rules. Further, it is open for the employer to set benchmarks for different stages of the recruitment/selection process provided that such benchmark is set before the concerned stage is reached.
Finally, for the sake of completeness, it would be apposite to refer to the concluding paragraph of Tej Prakash Pathak (supra):
“42.We, therefore, answer the reference in the following terms:
(1)Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;
(2)Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
(3)The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;
(4)Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ nonarbitrary and has a rational nexus to the object sought to be achieved;
(5)Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;
(6)Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.” (emphasis supplied)
Having taken note of the above propositions of law in the matter of recruitment or selection process, we now examine the case at hand.
7.0 The Recruitment Process and Extant Rules
First, we notice the following provision in the advertisement no. 03/2015:
“2 (l). The decision of the NBRI/CSIR in all matters relating to eligibility, acceptance or rejection of applications, mode of selection, conduct of examination/interview/Trade test will be final and binding on the candidates.” (emphasis supplied)
From the above, it is evident that NBRI/CSIR informed the prospective candidates of their authority to decide all matters relating to mode of selection and conduct of examination/interview/trade test.
After the issuance of advertisement no. 03/2015, DoPT issued instructions vide OM dated 09.10.2015 for discontinuation of interviews for various junior level posts in the Government of India:
“Subject: Discontinuation of interviews for various junior level posts in the Government of India – recommendations of Committee of Secretaries (CoS).
The undersigned is directed to refer to this Department‟s D.O. letter of even No. dated 04.09.2015 whereby it was requested that an exercise for identifying lower level posts in your Ministry/Department for which interviews could be dispensed with should be undertaken.
2.In this connection it is informed that the Committee of Secretaries (CoS) in its meeting held on 14.09.2015, while considering a note on the subject mentioned above has made the following recommendations:
(i)Interview will be dispensed with for all Group ‘C’ and Group ‘D’ which are now reclassified as Group ‘C’ posts. Interview should also be discontinued for non-gazetted posts of Group ‘B’ category.
(ii)The process of doing away with interview for these posts will be completed by 31.12.2015.
(iii)Specific and isolated Group „B‟ non-gazetted posts for which any particular department considers interview absolutely essential, clearance of Department of Personnel & Training would need to be obtained. It is clarified that since the skill test and physical test are different from interview such tests may continue.
(iv)In those cases pertaining to non-gazetted Group ‘B’ posts and Group ‘C’ and ‘D’ posts, where Recruitment Rules specify the process of selection which includes conduct of interview, the Ministry/authorities concerned will take necessary steps to carry out the requisite amendment to the Recruitment Rules immediately.
(v)For advertisement already done for selection with interview as a component, the posts could either be re-advertised, or if urgency or any other reason requires so, the ongoing process may be completed. …” (emphasis supplied)
The above instructions were reiterated in DoPT’s OM dated 29.12.2015. The rationale for doing away of interviews is explained in the Press Information Bureau release dated 07.10.2015 as follows:
“The government‟s view is that the interviews should be discontinued for recruitment to junior level posts where personality or skill assessment is not absolutely required. The objective behind abolition of interviews for such posts is that it will curb corruption, ensure more objective selection in a transparent manner and substantially ease the problems of the poor and resourceless aspirants. This will not only enable giving more weightage to the merit but also supplement the government’s resolve for “Maximum Governance, Minimum Government”. (emphasis supplied)
In accordance with the above policy brought out by Government of India, the CSIR amended the relevant recruitment rules in the following terms vide letter dated 09.11.2017:
“Subject: Amendment in CSIR Service Rules, 1994 for Recruitment of Scientific, Technical and Support Staff – Discontinuation of interviews – regarding.
Sir/Madam,
Based on the Department of Personnel and Training, Government of India OM No. 39020/01/2013-Estt(B) dated 9th October, 2015 and 29.12.2015 and in supersession of CSIR letter No. 5-1(315)/2015-PD dated 08.04.2016, I am directed to state that the Governing Body of CSIR in its 188th meeting held on 22nd November, 2016 has approved the following amendments in the CSIR Service Rules, 1994 for Scientific, Technical and Support Staff.
S. No. Post/Designation Existing Mode of Selection Amended Mode of Selection 1. Technical Assistant [erstwhile Group-III(1) & III(2)
9300-34800 + GP 4200 (PB-2)
Group-II (Technician)
5200-20200 + GP 1900 (PB-I)
Group-I (Lab Attendant)
5200-20200 + GP 1800 (PB-I)
Rule 10.3.1 The candidates as recommended by the Screening Committee will be invited for interview/ trade test. Intimation to candidates for this purpose should be sent at least 21 days in advance of the date fixed for interview/trade test, by registered post.
Rule 10.3.2 A duly constituted Selection Committee will interview the candidates to evaluate their suitability for the post.
Rule 10.3.1 The candidates as recommended by the Screening Committee will be invited for a trade test. Those who qualify in the trade test will be invited for a competitive written examination. The final merit list will be prepared on the basis of the performance of the candidates in the competitive written examination.
Rule 10.3.2 A duly constituted Selection Committee will conduct the trade test and the competitive written examination for the candidates to evaluate their suitability for the post.
Inclusion Rule 15
Any question relating to interpretation of these rules and laying down procedure through its implementation shall be decided by the DG, CSIR.
Henceforth, all the recruitments for the above mentioned posts may be made as per the amended provisions of the existing Recruitment Rules. The above modification to the Rules will come into force from the date of issue of this letter…” (emphasis supplied)
Pursuant to amendment of the extant rules by CSIR, the respondent issued the impugned order dated 13.07.2018 to the applicant, relevant parts of which are extracted below:
“In continuation of this Office letter of even number dated 04.10.2016, I am directed to intimate that the trade test exam which was scheduled on 20.10.2006 and postponed due to unavoidable circumstances, is now rescheduled to be held on 10.08.2018 as per details hereunder: ….
5.The trade test is of qualifying nature and your trade test exam will be taken on the subjects related to your future job expectation on the trade…” (emphasis supplied)
It is noted that the respondent has intimated the applicant of the qualifying nature of the trade test prior to conduct of the trade test.
In terms of Tej Prakash Pathak (supra), it is open for the recruiting bodies, subject to the extant Rules, to devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/non-arbitrary and has a rational nexus to the object sought to be achieved. Further, if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise.
The respondent, through advertisement no. 03/2015, invited applications for filling up of vacancies through interview/trade test. In the advertisement, it was specified that the decision of NBRI/CSIR in all matters relating to mode of selection and conduct of examination/interview/trade test will be final and binding. Subsequently, the date for holding the trade test was postponed. In the meantime, Government of India brought out the policy for discontinuation of interview for Group ‘B’ non-gazetted and Group ‘C’ and ‘D’ (reclassified as Group ‘C’) posts with the aim to curb corruption and ensure more objective selection in a transparent manner. The CSIR, accordingly, amended the extant rules with effect from 09.11.2017 by removing the criteria of interview, specifying the nature of trade test as qualifying and introducing competitive written examination. The respondent notified the applicant of the qualifying nature of the trade test on 13.07.2018 before conducting the trade test on 10.08.2018. The applicant also participated in the competitive written examination conducted afterwards on 28.01.2019 without demur. It was only after the notification of questions and answer key on 01.02.2019 that the applicant approached this Tribunal.
It is evident from the above that the respondent acted as per the extant Government policy and the amended extant rules which were aimed at curbing corruption or extraneous influence and enhancing transparency and objectivity in selection. It is evident that the amended rules had rational nexus with the object of fair selection. The respondent also notified the applicant in advance. No arbitrariness or discrimination can be said to have been caused to the applicant due to the changes in mode of selection which were effected before holding of the relevant stages of selection. The issue enumerated in paragraph 5 above is answered in the affirmative, therefore. Further, it is observed that the applicant participated in the trade test and in the written examination without demur. In view of these facts and circumstances, the applicant’s case has no legs to stand, in our opinion. Consequently, the applicant is not entitled to the relief prayed for.
In view of the foregoing, this OA is dismissed for being devoid of merit.
Associated MAs also stand disposed of.
Parties shall bear their own costs.