IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.3314 of 2011 Yogesh Kumar, s/o- Shri Umesh Prasad, r/o- village maheshpur, P.O.- Madhopur, P.S.- Chandi, District- Nalanda (Bihar). ……. Petitioner Versus 1. The Union Of India , Ministry of Finance, through its Secretary, New Delhi. 2. The Chairman-cum-Managing Director, The Oriental Insurance Company Ltd. Head Office-A-25/27, Asaf Ali Road, New Delhi- 110002. 3. The General Manager, Personnel, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi- 110002. 4. The Deputy General Manager, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi-110002. 5. The Chief Regional Manager, the Oriental Insurance Company Ltd. Regional Office, Kadamkuan, Patna-800003. …. Respondents ---------------------------------- with CIVIL WRIT JURISDICTION CASE No.5243 of 2011 Ranjeet Kumar, s/o- Shri Chandra Bhushan Prasad, r/o- Master Lodge, Near Dental College, M.G. Nagar, P.O.- Lohianagar, P.S.- Kankarbagh, District- Patna, Permanent Address village Parthu, P.O.- Parthu, P.S.- Ekangarsarai, District- Nalanda (Bihar). ……… Petitioner Versus 1. The Union Of India , Ministry of Finance, through its Secretary, New Delhi. 2. The Chairman-cum-Managing Director, The Oriental Insurance Company Ltd. Head Office-A-25/27, Asaf Ali Road, New Delhi- 110002. 3. The General Manager, Personnel, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi- 110002. 4. The Deputy General Manager, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi-110002. 5. The Chief Regional Manager, the Oriental Insurance Company Ltd. Regional Office, Kadamkuan, Patna-800003. …….. Respondents ---------------------------------- with CIVIL WRIT JURISDICTION CASE No.5324 of 2011 Reena Kumari, d/o- Shri Rajendra Prasad, r/o- c/o- Rabindra Kumar Sinha,. Flat No. 402B, R.N. Villa Apartment, Plastic Pipe Factory Road, M.G. Nagar, P.O.-Bahadurpur Housing Colony, 800026. 2 ….. Petitioner Versus 1. The Union Of India , Ministry of Finance, through its Secretary, New Delhi. 2. The Chairman-cum-Managing Director, The Oriental Insurance Company Ltd. Head Office-A-25/27, Asaf Ali Road, New Delhi- 110002. 3. The General Manager, Personnel, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi- 110002. 4. The Deputy General Manager, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi-110002. 5. The Chief Regional Manager, the Oriental Insurance Company Ltd. Regional Office, Kadamkuan, Patna-800003. ……….. Respondents ---------------------------------- with CIVIL WRIT JURISDICTION CASE No.3320 of 2011 Pramila Kumari, w/o- Sri Prabhat Kumar, r/o- village Shahpur, P.O.- Ramghat, P.s.- Nagarnausa, District- Nalanda (Bihar), Pin Code 801305 …… Petitioner Versus 1. The Union Of India , Ministry of Finance, through its Secretary, New Delhi. 2. The Chairman-cum-Managing Director, The Oriental Insurance Company Ltd. Head Office-A-25/27, Asaf Ali Road, New Delhi- 110002. 3. The General Manager, Personnel, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi- 110002. 4. The Deputy General Manager, The Oriental Insurance Company Ltd. Head Office- A-25/27, Asaf Ali Road, New Delhi-110002. 5. The Chief Regional Manager, the Oriental Insurance Company Ltd. Regional Office, Kadamkuan, Patna-800003. …. Respondents For the petitioners : Mr. Binay Kumar Singh, Advocate. For the respondents : Mr. Jitendra Singh, Sr. Advocate Mr. Satyabir Bharti, Advocate ---------------------------------- 9 11.08.2011 These batch of writ petitions have been clubbed together as they raise common issue(s). With the consent of the parties, all the aforesaid writ petitions have been heard together and the present order would govern them. Relevant annexures of the case shall be 3 referred from C.W.J.C. No. 3314 of 2011 (Yogesh Kumar versus Union of India). In all the writ petitions, the writ petitioner(s) were applicants for the post of Administrative Officer (for short A.O.) for which applications were invited by the respondent Oriental Insurance Company Ltd (for short “ the Insurance Company) by advertisement/employment notice dated 27.2.2010 (Annexure-1). According to the aforesaid employment notice, minimum educational qualifications for different groups were prescribed. For the posts in question in Group-D (Code No. 04) Graduation with minimum 60 % marks or 55 % in Master degree for General Category from recognized University was prescribed. As per the advertisement, total number of posts including all categories was 165 out of which 44 posts was/were reserved for OBC. Petitioners claiming themselves under OBC category applied for the said post as they fulfilled educational qualification/criteria therefor. Admit Cards (Annexure-2) were issued whereafter they participated in the written test conducted on 9.5.2010. The respondents thereafter short listed candidates for interview and a list of short listed candidates was published on 25.6.2010 (Annexure-3). They were called in for interview. The call letter is Annexure-4. Petitioners, in the light of instructions contained therein, appeared before the interview Board armed with all certificates. They were interviewed whereafter the list of selected candidates was put up on the website of the respondent Insurance Company on 19.8.2010. To utter surprise of the petitioners, they did not find themselves in the select list. According to 4 the petitioners, they had performed extremely well at the written test and the interview yet they were not selected by the respondent Insurance Company. Certain information thereafter was sought under Right to Information Act by the petitioners which was/were supplied wherefrom it was revealed that for written test, 45 % marks for general/O.B.C. in Paper-I and 40 % marks in Paper-II of Group-D was applied as cut off marks. Details of marks obtained by the petitioners at the written test/descriptive test and interview are as under: Sl. No. Name Roll Nol Marks obtained in objective paper (150 marks) Marks obtained in descrip- tive paper 50 marks Sl. No. of the can- didate in the list of successful candidate at the written test Interview 1 Yogesh Kumar 354169 125 20 251 1.5 2 Ranjeet Kumar 354130 128 32 246 1.5 3 Reena Kumari 354132 128 20 247 1.5 4 Pramila Kumari 354145 124 25 248 1.5 The petitioners thus knocked the doors of this Court seeking quashment of the final result of the candidates for appointment to the post of Administrative Officer in Group-D for which results were published on 19.8.2010. Such challenge has been made on the ground that the selection process was tainted with regional bias and that awarding abysmally low marks in interview was irrational which shocked the conscience of the petitioners. They also assail the selection process on the ground that application of cut off marks at 5 interview would amount to changing rules of the game when it was over. Petitioners also alleged discriminatory treatment at the interview by awarding them excessively low marks in interview particularly when they had performed extremely well in the written test having secured more than 80 marks. According to the petitioners, such discriminatory treatment meted out to them at the interview would militate against Articles 14 and 16 of the Constitution of India and is thus unsustainable in the eyes of law. Awarding of excessively low marks at the interview has also been challenged on the ground that persons constituting the interview panel/Board was suffering from regional bias against the applicants who hailed from State of Bihar. Award of abysmally low marks to them was an artifice to show them exit-door. Several sets of counter affidavits have been filed to the writ petitions. Learned counsel for the petitioners made two fold submissions. According to him, the advertisement (Annexure-A to the counter affidavit) declared as under: “The company reserves the right not to call any candidate to appear at the written exam. and interview. On the basis of performance in written examination, candidates will be called for interview and final selection will be made on overall performance in written examination and interview. “ The respondents could not have fixed a minimum cut off mark at the interview in the face of aforesaid stipulation made in the advertisement. The same would amount to changing rules of the game midway which is not permissible in law. Reliance in this regard has been placed on the judgment of the Supreme Court in the case of 6 K. Manju Shree versus State of Andhra Pradesh since reported in (2008) 3 S.C.C. 524. Challenge to the selection procedure has also been made on the ground that the same was tainted with regional bias inasmuch as applicants belonging to the State of Bihar like the petitioners having obtained high marks in the written examination were, by design, awarded excessively low marks at the interview. Prayer, therefore, has also been made to direct the respondents to hold de novo interview of the petitioners or to award marks in interview proportionate to their score in the written test. Learned counsel for the respondents, on the other hand, supported the selection process adopted by the respondent Insurance Company. In the submission of the respondents, ratio laid down in Manjusree versus State of Andhra Pradesh since reported in (2008) 3 SCC 512 would not be applicable to the facts of the present case. The said judgment was rendered by the Apex Court in a totally different factual scenario. As about the interview of the short listed candidates including the petitioner(s) held by the interview Board, it is submitted that facts stated in the counter affidavit would eloquently indicate that there was no bias much less regional bias in awarding marks to the candidates including the writ petitioner(s) who faced interview. It is next contended that the writ application(s) are bound to fail since the petitioner had taken written test followed by interview and thus had taken a chance to get themselves selected and having failed thereat, they cannot be allowed to volte face and challenge the entire selection process. In other words, if a candidate takes a calculated chance and 7 appears at the interview, then only because the result of the interview is not palatable to him, he/they cannot turn around and contend that the process of interview was unfair or the Selection Committee was not properly constituted. Reliance in this regard has been placed on the case of Madal Lal and Ors versus the State of J & K since reported in (1995) 3 S.C.C. 486. Learned counsel also highlighted the importance of viva voce in the matter of selection. Relying on paragraph 54 of the judgment of Supreme Court in the case of K.H. Siraj versus High Court of Kerala and Ors ((2006) 6 S.C.C. 395), it is submitted that personal interview is the best mode of assessing the suitability of a candidate for a particular post or position. While the written examination is to testify the candidates academic knowledge, the oral test alone can bring out his overall intellectual and personal qualities like alertness, resourcefulness, dependability, ability to take decision and qualities of leadership etc. He also placed reliance on paragraph 5 of judgment of the Supreme Court in the case of Lila Dhar versus State of Rajasthan and Ors (1981) 4 S.C.C. 159. Arguing further, it is contended that the Interview Board consisted of persons of eminence in their fields and allegation of mala fide leveled against them would not be sustainable in law for the reasons set out in the counter affidavit as also the fact that none of them has been made party respondents in the present writ petition. Learned counsel for the petitioners, in reply, takes a stand referring to Annexure-9 to C.W.J.C. No. 3320 of 2011 (Pramila Kumari versus The Union of India & Ors) that a request was made to 8 supply names of the persons/officials who constituted the Interview Board under the R.T.I. Act but the same was not disclosed for reasons disclosed thereunder which prevented the petitioners from impleading them as party respondents to the present set of writ petitions. I have considered the rival submissions made by the parties and perused the pleadings made in the writ petition, the counter affidavit and reply/rejoinder thereto. Adverting to first ground of attack that the entire selection process stand vitiated on account of changing the Rules of Game midway, this Court would first enlist the facts which are not in dispute. There is no statutory provision and/or Rule governing the present selection process . It is also not the case of the writ petitioners that in the earlier selection process carried out by the respondents, any such cut off marks at the interview was not imposed. The selection process was, therefore, required to be carried out in terms of stipulations made in the advertisement or notice inviting applications for selection to the post(s) in question. Petitioners, in this regard, highlighted the stipulations in the said notice inviting application (Annexure-A) which has already been extracted hereinabove. It declares that selection will be made on overall performance in written examination and interview. The petitioner, in order to substantiate his stand has relied on the ratio laid down in K. Manju Shree(supra). The stand of the respondents, per contra, is that the ratio laid down in K. Manju Shree (supra) would not be applicable to the facts of the present case. From perusal of the judgment rendered by Hon’ble Supreme Court in K. Manju Shree (supra) it 9 would appear that the criteria adopted during the selection process was sought to be changed inasmuch as the ratio between the written examination marks and interview marks was also changed. This fact would appear from paragraph 8 of the report. It also appears therefrom that a cut off percentage was also applied for interview which was not the contemplation in the Andhra Pradesh State Higher Judicial Service Rule, 1958 (for short “the Rules”). The respondents had resolved to impose a cut off marks subsequent to the selection process and preparation of select list in the teeth of the provision contained in the Rules. The Hon’ble Supreme Court thus took into consideration that the aforesaid amendment/modification in the criteria to be adopted in the matter of selection of Judicial Officers was being sought to be enforced after the selection process was completed and the results were placed for approval. In these factual scenario, the Hon’ble Supreme Court held introduction of requirement of minimum marks for interview after the entire selection process (consisting of written examination and interview) was completed would amount to changing the rules of the game which was held impermissible in law. Respondents, in the counter affidavit, have stated that maximum marks for written examination and the interview was 200 and 30 respectively. The candidates were considered for selection on the basis of marks secured at written examination and interview. After the written test, the respondents followed a uniform procedure for short listing the candidates. The names of candidates who had appeared in the written test and cleared the same was/were listed in descending 10 order of the marks obtained by them group wise, post wise, category wise and paper/subject wise. A cut off mark was thereafter applied to short list candidates for interview. The said cut off marks was paper wise and category wise. For general/OBC such cut off was higher than the cut off mark fixed for S.C./S.T.. Similarly, cut off marks for S.C./S.T. category was same in all cases. By adopting the aforesaid procedure, candidates three times the number of vacancies in each group was/were empanelled for interview. While doing so, all candidates who secured marks equal to the last qualifying candidate was/were also called in for interview. As about the procedure adopted at the interview, the respondents have stated that out of the candidates who attended interview, those general/OBC categories candidates who secured at least five (05) marks in the interview and those S.C./S.T. category candidates who secured at least four (04) marks in interview was/were short listed for final selection. After preparing the list in accordance with the aforesaid procedure, the same was arranged in descending order of the total marks obtained by the candidates in written test and interview and candidates equal to the number of vacancies against each post/group were given offer of appointment. It is the stand of the respondents that prescribing cut off marks cannot be pre-determined as the performance of the candidates varies from batch to batch. So, per the practice, the candidates are not informed about the required cut off marks to be adopted at the interview. They are, however, emphatic in stating that in all the recruitment processes of the respondent Company, similar 11 process of prescribing cut off marks for interview has been applied before short listing candidates for final selection (refer paragraph 8 of 2nd supplementary counter affidavit in C.W.J.C. No. 5324 of 2011). It thus appears that notice inviting application for selection disclosed that selection of a candidate would be made on overall performance in written examination and interview. The respondents have stated in detail the procedure which they adopted in short listing the candidates for interview and thereafter for the final selection. I have also noticed that no statutory provision or rule governs the present selection process. It is the unambiguous stand of the respondents that in all previous selection/recruitment process of the Company, similar process of applying cut off marks for interview had been applied before short listing of candidates for final selection. Considering the submission(s) of the parties and perusing relevant pleadings in this regard, this Court is satisfied that by applying a minimum cut off marks at the interview, the respondents have not changed the rules of the game. The ratio laid down in K. Manju Shree (supra) would not be applicable to the facts of the present case. Challenge on that count fails. The next limb of attack to the selection process is on the plea that the same was tainted with regional bias inasmuch as applicants belonging to the State of Bihar like the petitioners were awarded excessively low marks at the interview. This was with a design to ensure that the doors of entering them in service of the Corporation be slammed on their face. The said submission has been advanced on 12 the premise that the petitioners had secured high marks in the written examination inasmuch as many of them secured more than 80 % marks but they were awarded 1.5 marks at the interview which perceivably appears to be excessively low and tainted with bias termed by them as “regional bias”. The respondents, on the other hand, have disputed and controverted the aforesaid stand of the petitioner. It has been stated in the reply affidavit(s) that such allegation springs from the fact that the petitioner secured only 1.5 marks at the interview out of 30 marks. The counter affidavit, in this regard, states that the selection was to be made on all India basis and interview marks were awarded on the basis of performance of the candidate in the interview. A person or candidate may have good bookish knowledge and thus faired well at the written test but he or she may be lacking required knowledge/skills, adaptability, capacity to take prompt decision and displaying qualities suitable for job. The interview is aimed at evaluating these qualities. Relying on Lila Dhar (supra), the respondents have substantiated the aforesaid stand. In Lila Dhar (supra), the Hon’ble Supreme Court observed as under in paragraph 5 relevant part thereof is extracted hereinbelow: “It is now well recognized that while a written examination assesses a candidate’s knowledge and intellectual ability, an interview-test is valuable to assess a candidate’s overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview-test there are yet no written tests which can evaluate a candidate’s initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, 13 judgment , ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an interview-test, much depending on the constitution of the Interview Board.” The same view has been taken by the Supreme Court in K.H. Siraj versus H.C. Kerala (supra). It appears that the panel of Interview Board consisted of four persons who are men of high integrity and caliber. This Court deems it germane to enlist hereinbelow the members constituting the interview Board: “(a) Mr. D. Sengupta, Chairman- Retd, Chairman, Gen. Insurance Corporation of India (b) Mr. M.R. Sharda, Member, - Retd. General manager of Oriental Insurance Company Limited (c) Mr. A.K. Das, Member, Retd. I.D.E.S., Addl. Secretary, Govt. of India. (d) Dr. A.S. Narag, Member, faculty of Management, Delhi University” It appears further from the averments made in the counter affidavit that 08 candidates from different streams/groups have been selected who belong to the State of Bihar. The primal ground of attack is that although the writ petitioners secured high marks at the written test yet they were awarded abysmally low marks at the interview. The respondents have clarified in paragraph 10(v) and (vi) as under “ (v) The average marks awarded in interview for D Group as a whole was 5.74 and the average marks awarded to OBC candidate under D Group was 3.89. Thus, marks awarded in interview was generally low. (vi) For illustration candidates of other states who had secured equally low marks in the interview include candidate from different states ex.: State Number of candidates Haryana 2 U.P. 3 Delhi 5 Karnataka 2 A.P. 1 Punjab 1 Uttarakhand 2 14 Himachal Pradesh 1 Orissa 1 Kerala 1 Jharkhand 1 West Bengal 1 On a consideration of the submissions of the parties made in this regard and after perusal of the materials on record, this Court does not find any merit in the submission of the petitioners that the selection process was tainted with mala fide and/or regional bias. Award of low marks to the petitioners at the interview would not suffice to hold that a discriminatory treatment was meted out to the petitioners at the interview which would militate against Articles 14 and 16 of the Constitution of India. This Court, while concluding so has also taken into account that the petitioners have not been able to demonstrate any personal bias of the members of the interview Board against them. This matter may be viewed from yet another angle also. The petitioners were found eligible for written test and was called in therefor. They participated therein and thereafter was/were short listed for oral interview. On being summoned, they appeared at the oral interview conducted by a team of persons of high integrity and caliber and after having failed to get the desired result, filed the present writ petitions challenging the process/procedure adopted at the interview as unfair, discriminatory and biased. The Supreme Court having noticed the aforesaid facts refused relief in Om Prakash Shukla versus Akhilesh Kumar Shukla (1986 ) Suppl. SCC 285 = A.I.R. 1986 S.C. 1043. Same view has been held by the Supreme Court in the State of Bihar versus Madan Lal (supra). Ratio laid down in aforesaid cases, in 15 my view, would also be applicable to the present case. In the light of discussions made hereinabove, this Court does not find merit in the writ petitions. They are, accordingly, dismissed. There shall be no order as to costs. pkj (Kishore K. Mandal, J.)