Dismissed
Prasanna C. Nikhade & Anr. v. Chairman and Managing Director of Air India
Delhi HCW.P.(C)/6487/2015
Case brief
from the order text
What is this about?
HIGH COURT OF DELHI AT NEW DELHI Date…
What the court decided
AI extract
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Signature Not Verified Digitally Signed By:AM UL YA
D
| IN THE HIGH COURT OF D |
DELHI AT NEW DELHI ate ofdecision: December 14, 2015 |
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| + | W.P.(C) 6436/2015 & CMNo. RAJESHDAGAR |
l 1715/2015 Petitioner |
| 'rhrough versus CHAIRMAN AND MANAGI INDIA |
Mr.Rajiv Manglik, Advocate NG DIRECTOR OF AIR Respondent |
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| Through | Mr.Lalit Bhasin, Advocate with Ms.Ratna D. Dhingra & Ms.Bhavna Dhami, Advocates |
|
| + | W.P.(C) 6705/2015 | |
| RAHUL PANCHAL | Petitioner | |
| Through versus CHAIRMAN AND MANAGI LTD. |
Mr.Rajiv Manglik, Advocate NG DIRECTOR, AIR INDIA |
|
| Through | Respondent Mr.Lalit Bhasin, Advocate with Ms.Ratna D. Dhingra & Ms.Bhavna Dhami, Advocates |
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| + | W.P.(C) 6487/2015 & CMNo PRASANNA C. NIKHADE & |
. 11825/2015 ANR Petitioner |
| Through versus CHAIRMAN AND MANAGI INDIA |
Mr.Rajiv Manglik, Advocate NG DIRECTOR OF AIR Respondent |
|
| Through | Mr.Lalit Bhasin, Advocate withMs.RatnaD. Dhingra& Ms.Bhavna Dhami, Advocates |
IV.P.fC)No. 6436/2015 and connected matters
Page 1 of II
| -iL_J I • ' Kii'i ' rriTr^TTFy:^ CORAM: HON'BLE MR. JUSTICE V.KAMESWAR RAO V.KAMESWAR RAO. J. (Oral) 1. As thesethi-eewrit petitionsinvolvea similarissuewith identical |
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facts,aiebeingdecidedbythiscommonorder. Thepetitionersinthese petitionsbelongtoOBCandSCcategories. |
| 2. The facts are being culled out from Writ Petition No.6436/2015. The respondentAir India Limitedhad issued an advertisementdated February27,2015 for fillingup postofSeniorTraineePilotwithA-320 Endorsementto berecruitedafterbeingdeclaredsuccessfulinSimulator |
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| ProficiencyAssessmentCheck(SPAC)andpersonalinterviewonly. The | |
| appointmentwas to be on contractbasis for 5years. The petitioners appliedforthe saidpost. Theywereinformedvidee-maildatedMarch 28, 2015 to havebeenprovisionallyshortlistedfor conductoftestsand wereintimatedtobepresemforSPACtestatSecunderabadonApril09, 2015bydepositingfeeofRs.20,000/-towardsthetestandverificationof documents. TherespondentpublishedtheresultofSPACinApril,2015 andthepetitionersweredeclaredsuccessfiil.Accordingly,thepetitioners were called for interviewon April 22, 2015 (petitionerin W.P.(C) No.6436/2015),April23,2015(petitionerinW.P.(C)No.6705/2015)and April22,2015&May05,2015(petitionersinW.P.(C)No.6487/2015). |
W.P.(Q No. 6436/2015andconnectedmatters
Page 2 of II
I! I. mLIiiEniiBE The petitioners were interviewed on the respective dates, referred to above. 3. Mr. Rajiv Manglik, learned counsel for the petitioners would submit, that in tems of the advertisement,the selectionwas to be based on SPAC and personalinterview. It is his submissionthat the information gatheredby the petitioner(s)through media was that the respondentalso conducted the psychometrictest, without following the procedure laid down for the psychometric test worldwide and only resorting to by incorporatinga Psychiatristin the panel of interviewers. Wlienthe results were declared, the petitioners' names were not included in the list of successfiilcandidatesprimarilyon the basis of psychometricevaluation. Despite representation by the Air Corporations' SC/ST Employees Association to the respondent providing relaxation to the candidates belongingto the reserved categories,their request has not been acceded to. He would also state, that the criteria for selection was 80 marks weightage for SPAC and qualifying marks being 70% and 20 marks weightage for personal interview. According to him, the petitionerin W.P.(C) No.6436/2015 had obtained 10.80 marks out of 20 marks in personal interview. Similarly,petitionerin W.P.(C) No.6705/2015had obtained 12 marks and the petitioners in W.P.(C) No.6487/2015 had scored 10 &10.2 marks respectivelyout of20 marks. He would draw my W.P.(C) No. 6436/2015andconnectedmatters Pages of II
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attentionto para 8 of the counter-affidavitto contend the stand of the respondent that the reasons for not getting selected was primarily the petitionershad not secured the qualifying marks of 13 i.e. 65% in the interviewfor SC/ST/OBCcandidates. Accordingto him, the requirement of qualifyingmarks in the interviewwas neitherthe criterianor stipulated in the advertisement. It is his case, that the stipulationof such a criteria, that too afterthe selectionprocesshas started,is illegaland contraryto the settledpositionoflaw by the SupremeCourt in the followingcases:(i) AIR 2008SC 2103 (1) HemaniMalhotmvs. High CourtofDelhi; (li) AIR 2008SC 1470K. Manjusree,etc vs. StateofA.P. andAnn; (Hi) AIR 2014 SC 1570 BishmiBiswas and others vs. Union ofIndia and ors. 4. On the othei hand, Mr. Lalit Bhasin, learned counsel appearingfor the respondentwould justify the selection and state that the petitioners were not rejected on the basis oi psychologistevaluationbut it is a case where the petitionersdid not secure the required 13 qualifyingmarks in the interview. On aspecificquery from the Court, whetherthe qualifying marks for the intei-viewwere prescribedin the advertisement,the answerwas in the negative. But he would lay stress on the fact that in a subsequentadvertisement,the petitionershad applied for the same post against 90 vacancies notified. The said selection comprised of written test, which included an aptitude test and technical Imowledge test.
W.P.(C) No. 6436/2015andconnectedmatters
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Candidates,who had quahfied the same were subjectedto psychometric test and further the candidatesqualified/declaredfit in psychometrictest, were required to appear for the personal interview. All the four petitionershave appliedfor the said post. Mr. RajeshDagar, petitionerin W.P.(C) No.6436/2015 had appeared in the Aptitude and Technical Knowledgetest, which he qualifiedbut did not qualify the psychometric test. Similarly,Mr. Rahul Panchal, petitionerin W.P.(C) No.6705/2015 applied and appearedfor Aptitudeand TechnicalKnowledgetest but did not qualifyboth the papers. Mr. PrasamiaC. Nikhade,petitionerNo.l in W.P.(C) No.6487/2015 even tliough applied for the post but did not appear for the Aptitude and Technical Knowledge test. Similarly, Mr. Ajay Dilip Chaudhari,petitionerNo.2 in W.P.(C) No.6487/2015did not qualifythe Aptitudeand TeclinicalKnowledgetest. 5. It is his submissionthat the petitionernamelyRajesh Dagar, having failed in the psychometrictest in the subsequentselection,he cannot be appointed, even if he succeeds in this petition as psychometrictest has become very relevant in the process of selection in view of a recent incidenthappened in Germany. Accordingto him, the said petitioneris not entitledto any relief. Similarly,the other three petitionerswould also not be entitled to any relief 6. Havingheard the learned counselfor the parties,I note the primary W.P.(C)No. 6436/2015 and connected matters Page 5 of 11
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issue that is raised in the writ petition is that without there being a stipulation in the Rules and .Advertisement for, a psychometric test/ presence of a psychologistin me interview board, the rejection of the petitioners candidature sok i.y based on an assessment through psychometrictest/psychologistis not tenable. Sufficeto state, that in para 8 of their counter-affidavit,the respondenthas statedas under:"8. I say that the candidateswere not rejectedon the basis ofthe psychologists evaluation. Only those candidateswere notselected who failed to achieve the minimum qualifying marks 70% for General or 65% for SC/ST/OBC candidates in the Personal Interview. Total marksfor PersonalInterviewwere 20. Petitioner being an OBC candidate, to qualify in the PersonalInterviewwas required to obtain 13 mdrlcs, however, the Petitioner in the Personal Interview scored 10.80 marks out of 20 marlcs. Therefore, was not selected. " 7. From the perusalof the aforesaidstand, it is clearthat the rejection of the petitioner'scandidature'vas not on the basis of any input or a conclusion drawn by the psychologist. In other words, it is for other reasons otherthan the psychologicaltest the petitionerswere not selected. The other reasons,noted from the averments,are that the petitionershad not securedthe qualifyingmarks in the interview. In supportofthis stand, the respondentin their counteraffidavithas apart from para 8, in para 11 (c) (rumiingpage No. 57) and also in para 11 (f) (at runningpages 59-60) has stated as under;"11 (c) The criteriafor selectionwas asfollows:-
W.P.(C) No. 6436/2015and connectedmatters
Page 6 of II
• ipmmmiF-n
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| Criteria for selection | Weishtase |
|---|---|
| A) Simulator Proficiency Assessment Check |
80 marks |
| (note: Qualifying marksfor SPAC is 70% |
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| for all Categories |
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| (including SC/ST/OBC) | |
| B) Personal Interview Personality |
20 marks |
| 10 marks General |
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| 10 marks | |
| Knowledge & awareness about present |
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| scenario of civil Aviation in India. |
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| (Note: The minimum qualifying marks |
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| for the SC/ST/OBC |
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| category in the | |
| personal interview was 13 marks out of20 marks.) |
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| Total | 100 marks |
Candidates with minimum qualifying marks in the Personal Interview were considered as 'Qualified'. The qualifying marks were 14 for General Candidates and 13 for the SC, ST and OBC candidates, which is the relair.d standard laid downfor the reserved category of OBC to which thepetitioner belongs.
11(f) The petitioner belonging to OBC category, applied for the, post of Sr. Trainee pilot (with endorsement of A-320) vide his application dated 02.03.2015. On scrutiny of the Petitioner Application, petitioner was found eligible and was informed to appear for SPAC on 10.04.2015, at Central Training Establishment, Air India Ltd, Hyderabad. Petitioner after qualifying the SPAC, vide email dated 22.04.2015, v/as directed to appear for Personal Interview on 07.05.2015. The Petitioner in the Personal Interview was required to obtain the above minimum qualifying marks - i.e 13 (65% for SC/ST/OBC) out of 2Omarkin the Personal Interview. The Petitioner in the Personal Interview scored 10.80 marks out of 20 marks and thusfailed to qualifythe interview. The respondentrefers toand relieson the recordof the selectionexercisein thisregard."
W.P.(C) No. 6436/2015 and connected matters
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1
were prescribed for intei-view, which the petitioners have not secured. The submissionof Mr. Manglilc, by relying on the reply dated July 31, 2015 to the RTI application made by one Mr. Chandra Shekhar Barua dated against points No.3 and 10, that no cut off marks for the interview were ever stipulated and even if stipulated, the same were after the advertisementwas issued whereby the selectionprocess had commenced are concerned, on the first aspect, the counter-affidavitfiled by the respondentis very clear; it reiteratesat differentplaces,the fact, that they had prescribed13 marks as the qualifyingmarks for interview. Even if, it is the case ofthe petitioners,based on the judgmentsin HemaniMalhotra (supra), K. Manjusree (supra) and Bishu Biswas (supra), that the qualifyingmarks have been prescribedafter the advertisement/selection process has been initiated, firstly, in the case of Hemam Malhotra (supra),the SupremeCourtin para 9, has held as under:-
"9. From the propositionof law laid down by this Court in the above mentionedcase it is evidentthatpreviousprocedurewas not to have any minimum marksfor vive-voce. Therefore, prescrihinp minimum marks for vive-voce was not permissible at all after written test M'as conducted. There is no manner of doubt that the authority making rules resiilatin^the selection can pre.scrihp. hv rules the minimum marks both for written examination and vrvp.voce, but ifminimum marks are not prescribedfor vive-vocebeforp the commencementofselectionprocess, the authority cnjir.pmpd^ cannot either durine the selection process or after the selection Process—add an additional requirement/Qualificationthat the candidate should also secure minimum marks in the interview. Therefore,this Courtis ofthe opinionthat prescrintionofminimum marks by the respondent at vive-voce.test was illp.pnl "
l'V.P.(C) No. 6436/2015and connectedmatters
Page 8 of U
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has held as under:-
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"29. The resolution dated 30.11.2004merely adopted theprocedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending 'the minimum marks prescribed for written examination, to interviews, in the selectionprocess is impermiisible. We may clarify thatprescription of minimum marks for any, interview is not illegal. We have no doubt that the authority makins rules resulatine 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 yrescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the 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. Wliat we have foimd to be illesal. is chansine 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."
"20. In the instant case, the rules of the game had been changed after conductingthe written test and admittedlynot at the stage of initiationof theselectionprocess. The marks allocatedfor the oral interview had been the same asfor written test i.e 50%for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured47 marlis outof50 in the written test had been given only 20 marks in the interview while large number of candidatesgot equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly,another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so called selected
W.P.(C)No. 6436/2015 and connected matters
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| candidates are not in employment, is also a relevantfactor to decidethe casefinally. Ifthewholeselectionis scrappedmostof thecandidateswouldhe ineligibleat least in respectofage as the advertisementwas issuedmorethan sixyearsago." |
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| 11. EventhoughMr. Manglikhadreferredto theaforesaidjudgments |
| neithersuchacasehasbeensetupbythepetitionersintheirpetitionnor |
| in the rejoinder, that the Rules pertaining to the selectionhave been |
| changedduringtheselectionprocessoraftertheselectionprocesstothe |
| prejudice of the petitioners to benefit persons, who did not fare well in |
| SPAC. The case as set up in the petitionhas alreadybeenreferi'edto and |
| dealtwithinthepreviousparagraphs. Thepetitionersintheirrejoinder |
| affidavithaveprimarilyhighlightedthereplygiventotheRTIapplication |
| toMr.ChandraShekharBaruaandtheallegedcontradictionsinthereply |
| to the RTI applicationand the counteraffidavit. Surely,a petitioner |
| canvassinga particularcasemust necessarilypleadthesametoenablethe |
| otherpartymeetthecase. Inthecaseinhand,whathasbeenarguedby |
| Mr.Manglik,has notbeenpleadedevenin therejoinder. In theabsence |
| ofsuchacase,havingbeenpleaded,thissubmissionisalsorejected. |
| 12. Accordingly,thechallengeofthepetitionersto therejectionoftheir |
| candidatureis without any merit and the petitions are liable to be - |
| dismissed. I order so accordingly. No costs. |
W.P.fC) No. 6436/2015 and connected matters
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| CM No.11715/2015 in W.P.(Q 6436/2015 CM No.l 1825/2015 in W.P.(C) 6487/2015 |
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| 13. In view of the order passed in the |
writ petitions, the present |
| apphcations are dismissed as infiuctuous. |
(V.KAMES^RRAO) JUDGE |
| DECEMBER 14, 2015 ak |
A
W.P.(C) No. 6436/20J5 and connected matters
Page II of II
3 issues framed by the court
Whether the rejection of petitioners for non-compliance with minimum qualifying marks in personal interview, introduced after the commencement of selection, was without legal merit.
Whether reliance on Supreme Court precedents regarding changing selection criteria was sustainable given the absence of a prima facie case in the pleadings.
Whether the petitioners were entitled to any relief regarding their rejection for the post of Senior Trainee Pilot.
Colour shows how this judgement treated each authority
Hemani Malhotra vs. High Court of DelhiDistinguished¶30
AIR 2008 SC 2103 · Who else cites this
K. Manjusree, etc vs. State of A.P.Distinguished¶35
AIR 2008 SC 1470 · Who else cites this
Bishmu Biswas and others vs. Union of IndiaDistinguished¶40
AIR 2014 SC 1570 · Who else cites this
2 provisions across 2 enactments
RAJESH DAGAR
RAHUL PANCHAL
PRASANNA C. NIKHADE
AIR INDIA LIMITED
V. KAMESWAR RAO
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court