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PETITIONER: MANJEET SINGH, UDC AND ORS. ETC.

       Vs.

RESPONDENT: EMPLOYEES STATE INSURANCE C

DATE OF JUDGMENT22/03/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PUNCHHI, M.M. RAMASWAMY, K.

CITATION:  1990 AIR 1104            1990 SCR  (2) 119  1990 SCC  (2) 367        JT 1990 (2)   180  1990 SCALE  (1)525

ACT:     Employees State Insurance Act, 1948: Sections 2-A. 17(2) and 97(1) (2) (xx).     Employees State Insurance Corporation--Insurance Inspec- tor-Recruitment  of--Written  Test  and  Interview--No  pass marks prescribed for interview--Selection made on the  basis of 40  marks in the interview held reasonable.     Service Law--Post-Filling up of vacancies--2/3 by promo- tion  and 1/3 by direct  recruitment--Panel--Direct  Recruit quota  partially  filled--Filling of  accumulated  vacancies from out of old penal-Desirability of.

HEADNOTE:     The respondent Corporation prepared a panel for the post of  Insurance Inspector, for filling up  the  direct-recruit quota,  on the basis of written test and interview.  In  the absence of prescribed marks for the interview--40% was  made as basic limit for selection.     The  unsuccessful candidates challenged their  rejection before  the Central Administrative Tribunal contending  that the selection based on 40% marks in the interview was unjus- tified.  Petitions were also filed by the successful  candi- dates  seeking directions to the respondent  Corporation  to issue appointments pursuant to the panel prepared.     The  tribunal directed that a fresh select list be  pre- pared for filling up the remaining vacancies on the basis of the  total  marks obtained in the  written  examination  and interview,  in  disregard  of the qualifying  marks  of  the interview. Hence this appeal. The successful candidates also filed a Writ Petition contending that they were entitled  to appointment  order  since  there was no  indication  of  the expiry of the panel.     Allowing the appeal in part and disposing of the matter, this Court, 120     HELD:  1. Interview has its own place in the  matter  of the selection process and the choice of the candidate.  Once this is recognised, it would be appropriate to require every candidate  to pass the interview test and for  that  purpose there  should be a basic limit provided. In the  absence  of

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any prescription of qualifying marks for the interview  test the prescription of 40% as applicable for the written exami- nation seems to be reasonable. [123C-D]     Rajesh Sood & Or3’. v. Director-General, Employees State Insurance  Corporation  & Anr., decided on August  7,  1985, approved.     2.  50%  of the vacancies existing upto  31st  December, 1989,  relatable to the one-third quota should be filled  up out of the penal after giving credit to appointments already made. The remaining vacancies should be filled up by holding of a fresh recruitment examination. The scheme intended  for recruitment  should be on the basis of an  examination  com- prising of written test and interview. In the oral  examina- tion the pass mark shall be 40% and 40% pass marks shall  be insisted  separately for the written as also the  oral  test for qualifying in the selection. [123B; D-E]

JUDGMENT: ORIGINAL JURISDICTION: Civil Writ Petition No. 226 of 1986. (Under Article 32 of the Constitution of India). WITH Civil Appeal No. 1263 of 1990.     From  the  Judgment  and Order dated  28.4.1989  of  the Central Administrative Tribunal, Hyderabad in T.A. No.  1146 of 1986.     Dr. L.M. Singhvi, Dr. Gauri Shankar, C. Mukopadhya, P.N. Misra and H.S. Parihar, for the Petitioners.     Madhava   Reddy,  Vivek  Gambhir,  S.K.  Gambhir,   R.D. Upadhyaya and Surender Karnail for the Respondents. The Judgment of the Court was delivered by     RANGANATH MISRA, J. Petitioners are employees under  the State Insurance Corporation, respondent no. 1. According  to the notification dated 22nd of April, 1977, issued in  exer- cise of powers 121 conferred  by s. 97(1), ( 1, 2)(xxx), s. 2A and s. 17(2)  of the  Employees State Insurance Act, 1948,  (hereinafter  re- ferred to as ’the Act’) which came by way of supersession of the  Employees  State  Insurance  Corporation  (Recruitment) Regulations,  1965, the post of Insurance  Inspector/Manager Grade  II  was  treated partly as selection  and  partly  as nonselection. There was no age limit for departmental candi- dates  and two-thirds of the vacancies were to be filled  up promotion and onethird by competitive examination under  the Rules. By advertisement dated 6th August, 1983, applications were  invited  for  filling up the  one-third  vacancies  by direct  recruitment  to the category of  post  of  Insurance Inspector/Manager Grade II. The petitioners in this applica- tion under Art. 32 of the Constitution responded to the said advertisement and were in due course declared as  successful in the test. In consideration of the fact that a good number of  vacancies were then existing and in anticipation of  the position  that more vacancies were about to occur, a  select list was drawn up for the existing and future vacancies.  In the  said select list petitioners featured at Sr. nos.  114, 116, 121, 159, 171, 172 and 188 respectively. The panel  was notified  and  in accordance with the  practice  petitioners along  with  other successful candidates  were  individually intimated by respondent no. 2 on 1.9.1984.     As already, indicated, the direct recruitment was on the basis  of examination and interview. The  advertisement  did not prescribe any pass marks in the interview though for the

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written  examination  40%  was  prescribed.  Selection  was, however, made on the basis of 40% in the interview test  and those  who  did  not secure 40% in the  interview  were  not selected. Challenge was made by the unsuccessful  candidates questioning  their rejection by contending that in  the  ab- sence  of any prescription of pass marks for  the  interview test,  there  was no justification to apply the  40%  basis. Writ Petitions were also filed when the respondents  instead of appointing people from the panel of successful candidates went on filling up existing vacancies out of the category of promotees. Such petitions were pending before the  Calcutta, Madras  and  Andhra  Pradesh High Courts  when  the  Central Administrative  Tribunals  came  to be set  up.  These  were transferred to the respective Benches of the Central  Admin- istrative Tribunals and on being clubbed were disposed of by a common judgment dated 28th of April, 1989, by the  Hydera- bad Bench of the Central Administrative Tribunal. The Tribu- nal held: "We  would direct in these cases that the respondents  shall work out and estimate the vacancies available upto 20th 122 June, 1986 accurately (we have used the word ’accurately’ as an apprehension has been expressed that direct recruits  are not  getting their due since over 320 posts were  filled  up between May, 1986 and December, 1988 by promotees on  ad-hoc basis or otherwise). After such estimation, the  respondents shall deduct therefrom 116 vacancies which have already been filled  and  make available the remaining vacancies  to  the applicants and others who took the examination on the  basis of aggregate marks, i.e. total marks obtained in the written test  and the oral interview. Such of the applicants in  all the  three  cases before us and heard by  us  at  Hyderabad, Madras  and Calcutta, who come within the zone of  selection in accordance with this procedure as directed by us would be entitled to appointment."     The writ petition is by the successful candidates  whose names  appear in the panel but who have not been  given  ap- pointments.  They have contended that the  respondents  were entitled to the issue of appointment orders to them inasmuch as vacancies exist and there was no indication that the life of  the  select list would expire either at the end  of  one year or on the expiry of the further extended period of  six months and when there has been no fresh select list as yet.     The  decision  of the  Central  Administrative  Tribunal referred  to above has been assailed by special leave  chal- lenging the direction of the Tribunal that the fresh  select list  filling  up the remaining vacancies as on  20th  June, 1986,  should  be prepared on the basis of total  marks  ob- tained in the written examination and interview in disregard of  the qualifying marks for the latter. We granted  special leave and have heard the writ petition and the civil  appeal together.     As  already  indicated, the last list on  the  basis  of recruitment  examination  was drawn up in 1984.  There  have been  a  good number of vacancies then existing  and  subse- quently  a number of them have arisen as against which  only 116  appointments  have been made, including 16 out  of  the reserved  categories.  At one stage of the  hearing  we  had indicated  to Shri Madhav Reddy, appearing for the  respond- entCorporation that the existing vacancies should be  filled up  out of the panel of 1984 and in answer to  this  sugges- tion,  an  affidavit has been filed to say  that  candidates have  been  waiting  for the holding  of  fresh  recruitment examination and if out of the panel of 1984 all the existing vacancies are directed to be filled up, they would be  frus-

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trated.  There is force in the submission. The  Tribunal  in its decision has indicated 123 that  even upto 20th June, 1984, there were  some  vacancies which  were available to be filled up out of the  panel.  On account  of respondents’ inaction in holding of  annual  re- cruitment examinations, vacancies have accumulated.  Keeping all these aspects in view, we direct that 50% of the  vacan- cies existing upto 31st of December, 1989, relatable to  the one-third  quota should be filled up out of the panel  after giving  credit to 116 appointments noticed by the  Tribunal. The remaining vacancies should be filled up by holding of  a fresh recruitment examination latest before 30th of  Septem- ber, 1990.     So far as the remaining question that was debated before the  Tribunal  is  concerned, we are of the  view  that  the scheme intended for recruitment should be on the basis of an examination  comprising  of written test and  interview.  We agree  with the submission of Shri Madhav Reddy that  inter- view has its own place in the matter of the selection  proc- ess  and  the choice of the candidate. Once this  is  recog- nised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a  basic limit provided. In the absence of any  prescription of  qualifying  marks for the interview test the  same  pre- scription  of 40% as applicable for the written  examination seems to be reasonable. That has been the view expressed  by one of us (Punchhi, J.) in a decision (Rajesh Sood & Ors. v. Director-General,  Employees State Insurance  Corporation  & Anr., decided on August 7, 1985) to which our attention  has been  drawn. We approve of the view. Accordingly, we  modify the  direction of the Administrative Tribunal and hold  that in  the oral examination the pass mark shall be 40% and  40% pass  marks shall be insisted separately for the written  as also the oral test for qualifying in th selection.     The  appeal is partly allowed and both the  matters  are disposed of by this common judgment. There shall be no order as to costs. T.N.A.                              Appeal allowed in part. 124