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2008 (3) GCD 1670 (Guj) (DB)
Hon’ble Mr. Justice M.S. Shah &
Hon’ble Mr. Justice Ravi R. Tripathi
Hiteshkumar K. Chauhan
Versus
Union of India Thr. General Manager & Ors.
Special Civil Application No. 16049 of 2005—Decided on 27/02/2008
Held :
The submission of the learned Standing Counsel cannot be accepted for the simple reason that this is not the ground on which the petitioner is denied the appointment. Besides, the disability is ‘approximately 40%’ and, therefore, the case of the petitioner ought to have been considered by the respondent authorities. [Para 9]
The Tribunal has erred in rejecting the allegations of the petitioner, which was made by way of amendment. It was alleged by the petitioner that the Selection Committee had not adopted the procedure prescribed in the master circular and had not allotted the marks in the criteria fixed by the master circular; that in the Viva Voce, the marks were not allotted to different heads and as such, the Selection Committee had allotted the marks arbitrarily resulting into the petitioner getting only 2 marks out of 15 marks; that at the time of Viva Voce, the Selection Committee was aware of the marks received by each candidate in the written examination and, therefore, the Selection Committee intentionally gave low marks to the petitioner so that he is not selected. [Para 10.1]
The file produced for perusal by the learned Standing Counsel for the respondent authorities does contain the answer books of the candidates, but is not having any material to show as to how the Viva Voce was conducted by the Selection Committee, i.e. whether the marks allotted to different heads so as to assess a candidate in Viva Voce. It is a matter of which a judicial notice can be taken that when a candidate has scored the highest marks out of 1335 candidates, he cannot be given only 2 marks out of 15 in Viva Voce, without recording the valid reasons for the same. The justice requires that the record of the Selection Committee, who conducted the Viva Voce ought to have been specific and eloquent enough to justify itself. The result sheet of 8 candidates, who appeared for Viva Voce is also produced for perusal in the file, wherein surprisingly, 1 candidate has scored 15 out of 15 marks, other candidate has scored 14 out of 15 marks, whereas all the other candidates have scored less then 10 marks out of 15 marks, viz, 2, 8, 5, 3, 3 and 5. In absence of any material to show that 15 marks of Viva Voce were having any breakup and in a particular head, the candidate having failed to satisfy the requirement of the Selection Committee, it is difficult to uphold the marks of the Selection Committee of Viva Voce. [Para 11]
Petition Allowed
Ravi R. Tripathi, J.—The petitioner being aggrieved and dissatisfied by order dated 02.05.2005, whereby the Central Administrative Tribunal, Ahmedabad Bench rejected Original Application No. 90 of 2003 and also disposed of Misc. Application No. 174 of 2004, is before this Court.
2. The facts giving rise to the present petition are as under;
2.1. The petitioner is a handicapped person, who in response to a notification issued by the respondents for fining up the vacancies of Group “C” and “D” posts against quota for handicapped persons, applied and appeared in the written test held on 19.11.2000.
2.2 The petitioner being successful in the written test was called for Viva Voce, The case of the petitioner is that he appeared well in Viva Voce. As the petitioner did not find his name in the list of successful candidates, he made a representation to the respondent authorities. The father of the petitioner, who was an ex Railway employee, also approached the Senior Divisional Personnel Officer, Bhavnagar Division with a request to consider the case of the petitioner sympathetically. The petitioner did not receive any reply from the office of Respondent No. 2, i.e. Divisional Railway Manager and, therefore, the petitioner approached the Central Administrative Tribunal by filing the aforesaid Original Application No. 90 of 2003.
2.3 It is the case of the petitioner that there were 4 vacancies notified for handicapped persons, out of which only 3 were filled in, that the petitioner was asked to furnish a latest certificate depicting his handicapness; that the action of the respondent authorities of asking the petitioner to furnish a latest certificate showing his handicapness suggests that the name of the petitioner was under consideration, that even after the petitioner furnished the latest certificate, he is not considered for appointment.
2.4 The petitioner alleged some foul play in the process of recruitment. It is also the case of the petitioner that the family of the petitioner is dependent on pension, received by his father; that he is the only son of his parents, that too handicapped; that he is not able to render any assistance to his father.
The Original Application was contested by filing a reply, wherein it was contended by the respondent authorities that in response to the notification for filling up ‘four’ vacancies, reserved for handicapped persons, 1335 candidates had applied; that all these candidates were called for the written examination; that the petitioner was successful in the written examination and hence, he was called for Viva Voce; that he could not succeed in Viva Voce and, therefore, his name was not shown in the list of selected candidates.
2.5 The respondents had stated in the reply that out of 4 (four) vacancies, 2 (two) vacancies were reserved for orthopaedic handicapped, 1 (one) for hearing handicapped and one for visually handicapped; that as no visually handicapped was available, the said vacancy was not filled in; that the petitioner had applied for the orthopaedic handicapped category; that the certificate produced by the petitioner was of the year 1991 and, therefore, the Committee desired the petitioner to furnish a fresh certificate. The respondents had contended that having appeared in the selection and having failed to clear the same, the applicant cannot turn around and challenge the selection process. The respondents prayed for the dismissal of the Original Application with costs.
2.6 The petitioner, having learnt about the Viva Voce result, amended the Original Application alleging that the Selection Committee had not adopted any criteria for awarding the marks in the Viva Voce; that the awarding of only 2 (two) marks out of 15 (fifteen) in Viva Voce is arbitrary and requires to be set aside; that the petitioner was given such low marks only with a view to see that the petitioner does not get selected; that, the performance of the petitioner was very good in the written test as well as in V
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