This writ petition has been filed for issuance of Writ of 2/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 Certiorarified Mandamus calling for the records pertaining to the impugned provisional selection list for the post of Chemical Process Worker published vide his Notification dated 19.06.2017 and the consequential impugned order of posting made by the 3rd respondent vide his proceedings dated 08.02.2018 and quash both as illegal and unconstitutional and thereby direct the respondents 1 to 3 prepare fresh selection list as per Rule of Reservation by fixing cut off marks based on communal categories and thereby appoint me in the post of Chemical Process Worker either under the category of Scheduled Caste Community (General) based on the marks secured by the petitioner in the Written Examination within the time limit, with all service and monetary benefits.
2. The case of the petitioner is that he had completed SSLC and thereafter completed I.T.I. Course in Fitter Trade from SCAD I.T.I, Cheranmahadevi, Tirunelveli District during the year 2014. The petitioner belongs to Schedule Caste Community. The 3rd respondent issued a notification dated 18.07.2015 to fill up various posts including 140 Chemical Process Workers. The last date for submitting the application was fixed as 28.07.2015. The qualification prescribed was that the candidate must have completed the Matriculation studies or 3/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 final year SSLC in the school level and must possess I.T.I Trade from any Industrial Training Institution. The petitioner applied for the said post and the respondents, after verifying the petitioner's school certificate and trade certificate, permitted the petitioner to participate in the selection process. The written examination was conducted on 12.03.2017 and totally 178 candidates including the petitioner appeared for the said written examination. The 3rd respondent issued question and answer booklet to all the candidates and after completion of the examination, all the candidates returned the said booklets to the invigilators.
2(a) In continuation of the written examination, trade test was held on 18.06.2017 and the petitioner participated in the said test. The 3rd respondent, after clubbing the marks obtained by the candidates in the written examination and trade test, published the results on 19.06.2017 in the Notice Board at Nilgiris Office. The petitioner's name was not found in the said list.
2(b) The learned counsel appearing for the petitioner contended that the respondents published the results of the written examination in an illegal and arbitrary manner. In the results published, the 4/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 following were not mentioned.
(i) Marks obtained by each candidate
(ii) did not disclose the result of all the candidates appeared for the written examination
(iii) did not publish the candidates selected under reserved categories
(iv)communal roster system was not followed
(v) except publishing the results other procedures were not followed.
2(c) The learned counsel appearing for the petitioner further contended that one Kannan failed in the written examination but he was allowed to participate in trade and other practical tests and his name was declared as selected candidate and inclusion of his name in the selection list is grave irregularity committed in the selection process. In view of the same, the selection process is illegal and arbitrary and the same was not conducted in a transparent manner. The learned counsel further contended that the petitioner sought for certain information on 10.07.2018 under Right to Information Act and the 3rd respondent gave a reply dated 28.07.2018 stating that the cut off marks fixed for the Scheduled Caste category is 41 and the certificates of 138 candidates were verified by the selection committee. 5/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 The said reply is not correct and irregular. The petitioner did not get any further information in two appeals filed by him. The learned counsel for the petitioner further contended that the respondents failed to furnish the information on one ground or another. The petitioner has secured more marks in the written examination but the respondents gave reply that the petitioner secured only 40 marks and the same is below 41 marks fixed for Schedule Caste candidates. The respondents did not furnish the details and communal roster reservation for Scheduled Caste and other communities who secured higher marks than the petitioner in the result published on 19.06.2017. The respondents have not followed the roster system in letter and spirit.
2(d) The learned counsel further contended that the respondents have not considered the outstanding candidates of every community in the general turn instead of considering them in communal turn. The outstanding toppers in other categories, especially belonging to Scheduled Caste community ought to have been considered in the general turn instead of Scheduled Caste turn only. The respondents 1 & 2 failed to verify the genuineness of the selection process conducted by the 3rd respondent before issuing appointment order. The 3rd respondent has issued orders to the non-meritorious candidates by its 6/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 proceedings dated 08.02.2018 by discarding the rule of reservation and thereby failed to do justice to uplift the members of the Scheduled Caste community. The learned counsel further submitted the 3 rd respondent informed the petitioner that question booklet of the petitioner was destroyed in three days of examination and video coverage relating to trade test was not clear. The marks obtained by the candidates who participated in the selection process was not published. Six Scheduled Caste candidates who have admittedly obtained less marks than the petitioner were awarded five marks on the ground that they were ex-trade apprentices on Ordnance Factories. As per notification, there is no provision for awarding such marks and prayed for allowing the writ petition.
3. The respondents 1 to 3 filed counter affidavit as well as additional counter affidavit.
3(a) The learned counsel appearing for the respondents 1 to 3 referred to the impugned notification and submitted that no pass mark was fixed for Scheduled Caste community or for any other community. The last candidate selected in the Scheduled Caste quota out of 36 candidates has secured 41 marks and was ranked No.140 in the 7/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 selection list. The petitioner secured only 40 marks and therefore he could not be selected for the post of Chemical Process Worker. The marks of all the candidates who appeared in the written examination was not published as the process of recruitment was yet to be completed. But the selection list prepared was containing the marks obtained by all selected candidates. As far as Kannan referred by the petitioner is concerned, he belongs to Scheduled Caste community and he obtained 37 marks in the written test. He was an Ex-Trade Apprentice and as per the Government / OFB instructions (MoD ID No. 50(41) / 2016 -D(Estt./NG) dated 09.05.2016, Ex-Trade Apprentices have to be granted five marks and hence the said Kannan's score became 42 marks (after adding 5 marks to 37) and he was selected for the said post.
3(b) The respondents 1 to 3 and the Appellate Authority furnished all the details required by the petitioner in the application under Right to Information Act. The petitioner's OMR sheet along with answer key was provided to him. The question booklets pertaining to the written examination were destroyed after approval of the competent authority and hence it could not be provided to the petitioner. In the additional counter affidavit, the respondents 1 to 3 8/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 extracted the instruction of Ministry of Defence dated 09.05.2016 and submitted that as per the said instruction, five marks has has to be granted to Ex-Trade Apprentices.
3 (c). The learned counsel for the respondents 1 to 3 further submitted that OFB Board, Kolkatta widely published and circulated instructions dated 02.06.2016 for granting five marks to the Ex-Trade Apprentices and also the fact that this instruction was mentioned in the question booklets provided to the candidates while appearing for the written examination. The respondents 1 to 3 have furnished the details of six Scheduled Caste candidates to whom five marks were granted and marks obtained in the written examination and total marks after adding five marks for being Ex-Trade Apprentices. The learned counsel further contended that the petitioner was aware of this provision even before the examination. The respondents 1 to 3 enclosed a question paper along with the additional counter affidavit which contains general instructions “five extra marks to ex-trade apprentice of Ordnance Factories will be awarded in the final merit list of the written examination.” The petitioner ought to have approached the Central Administrative Tribunal for his relief and the petitioner has approached this Court after considerable delay of selection process and prayed for 9/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 dismissal of the writ petition.
4. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents 1 to 3 and perused all the materials available on record.
5. It is not in dispute that the 3 rd respondent issued a notification dated 18.07.2015 calling for application for filling up various posts. The post of Chemical Process Worker is the issue in this writ petition. In the notification dated 18.07.2015, the 3rd respondent has mentioned the qualification of the candidates eligible to be participated in the selection process. The petitioner has necessary qualification to be considered for appointment to the post of Chemical Process Worker. He applied for the said post and participated in the written examination as well as trade test.
6.In the notification, the 3rd respondent had specifically mentioned that selection will be based on the marks obtained in the written test only as trade test being qualifying in nature. The 3rd respondent has given a concession in the notification to Ex-Trade Apprentices of recruitment Ordnance Factory and sister Ordnance 10/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 Factories stating that marks being equal, the Ex-Trade Apprentices will be given preferences. There was no mention in the notification that Ex- Trade Apprentices will be given five additional marks, over and above the marks obtained in the written examination.
7. As rightly pointed out by the learned counsel for the petitioner, the provision of granting five marks extra for Ex-Trade Apprentices came into force only on 09.05.2016, much latter than the notification dated 18.07.2015. The learned counsel for the petitioner also pointed out that respondents 1 to 3 have admitted in the additional counter affidavit that the said provisions were widely published and circulated by OFB Board, Kolkatta by instructions dated 02.06.2016. It is the further contention of the learned counsel for the petitioner that the question paper set for Chemical Process Worker enclosed in the additional counter affidavit relates to written examination in which the petitioner participated on 12.03.2017. The learned counsel for the petitioner pointed out that the respondents 1 to 3 have admitted that the question booklets pertaining to the written examination in which the petitioner participated were destroyed and therefore the question paper set cannot be relied on by this Court.
11/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019
8. All the above contentions of the learned counsel for the petitioner has considerable force and are acceptable. When certain criteria have been mentioned in the publication for selection based on which the candidates participated in the selection process, the criteria mentioned in the publication cannot be changed by any subsequent instructions given by the 1st respondent. As per the publication, as rightly pointed out by the learned counsel for the petitioner, when there is no provision for granting and adding five marks to Ex-Trade Apprentices and the respondents can only give preference to Ex-Trade Apprentices, when the marks obtained by them as well as by other candidates are equal. Further, it is to be noted that the said instruction of adding five marks will be for all future recruitments in the cadres involving Ex-Trade Apprentices.
9. For better appreciation, the said instructions as contained in the additional counter affidavit is extracted hereunder :
“In line with the amendment to Section 22 of Trade Apprentices Act, it has been decided to amend the existing policy of recruitment of industrial employees from Ex-
Trade apprentices of OFs to the extent as under Provisions of granting five extra marks to Ex-Trade Apprentices in 12/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 the final merit list of the written examination conducted for a total of 100 marks may be included.
2.OFB is requested to include the above provision in the existing policy for all future recruitment in the cadres involving Ex-Trade Apprentices.
3.This issues with the approval of Hon'ble RM.”
10. The instructions so extracted above, makes it clear that the said instruction are to be implemented only for all future recruitment and it does not have any retrospective effect. Further, the respondents 1 to 3 failed to prove that the question paper set enclosed in the additional counter affidavit was issued to all the candidates, especially to the petitioner when they participated in the written examination on 12.03.2017. The respondents 1 to 3 have committed an illegality in adding five marks to eight candidates, out of which six candidates belong to Scheduled Caste community. Three out of six candidates obtained 37 marks and remaining three candidates obtained 36 marks in the written examination while the petitioner has obtained 40 marks. If five marks granted to six candidates is deducted from total marks now allotted to them, the petitioner will be selected and appointed as Chemical Process Worker.
13/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019
11. In the counter affidavit the respondents 1 to 3 have admitted that the entire selection process has not completed. In para 8 of the additional counter affidavit, the respondents 1 to 3 have stated that all 140 vacancies advertised could not be filled due to various reasons and the petitioner could not be included in the selection process, in violation of recruitment rules and reservation policy framed for the Ex- Trade Apprentices. From the impugned posting order dated 08.02.2018 filed in the typed set of papers, it is seen that respondents 1 to 3 have appointed only 126 candidates and still there are 14 vacancies in the post of Chemical Process Worker. Considering the fact that the respondents 1 to 3 have committed grave irregularity in awarding five marks to six Scheduled Caste candidates, in violation of notification dated 18.07.2015, the respondents 1 to 3 are directed to issue appointment order to the petitioner out of 14 vacancies which are not filled up, out of 140 vacancies notified. In view of grave irregularity committed by respondents 1 to 3 in the selection process, the contention of the learned counsel for the respondents 1 to 3 that the petitioner ought to have approached the Central Administrative Tribunal is without any merits.
14/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019
12. Considering the entire materials on record, especially existence of 14 vacancies, in the interest of justice, the entire selection list is not quashed as prayed for by the petitioner, but it would suffice, if the respondents 1 to 3 are directed to issue appointment order to the petitioner for the post of Chemical Process Worker. Accordingly, the respondents 1 to 3 are directed to issue appointment order to the petitioner for the post of Chemical Process Worker and the said exercise shall be completed within a period of four (4) weeks from the date of receipt of a copy of this order.
13. With the above direction, this writ petition is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
09.01.2020 Index: Yes mtl/rgr 15/16 http://www.judis.nic.in W.P.(MD)No.4645 of 2019 V.M.VELUMANI, J.
mtl/rgr To
1. The Secretary, Union of India, Ministry of Defence (Production and Supply) Defence Headquarters Post, South Block, New Delhi – 110 011.
2. The Chairman, Ordinance Factory, 10 A, S.K.Bose Road, Calcutta – 700 001.
3.The General Manager, Cordite Factory, Aruvankadu, The Nilgiris, Nigiris District, Tamilnadu State.
Pre-delivery Order made in W.P.(MD)No.4645 of 2019 09.01.2020 16/16 http://www.judis.nic.in