Deepak Kerketta v. Railtel India Corporation of India Limited

1. The two appellants complain of unreasonableness and erroneous findings on the part of the learned Single Judge who rejected the writ petitions againsttheir discharge by the respondent (hereinafter 'RAILTEL').

2. The facts of the case are that the appellants were selected (as probationers at E-1 level/post) and joined RAILTEL on different dates in the year 2012. As was required and expected ofthem for confirmation, they appeared in the process meant for confirmation - which included a written test (maximum 150 marks with a minimum requirement ofhaving to secure 60%); and also the other part of the process i.e. interview (60 marks with a minimum of 60%). This was to add up maximum 40 further marks which ^ could be secured by any individual candidate, on the basis of his performance at the job whose mJnimum requirement for qualifying was 60%. Both the appellants could hot make way in the first round; their probation periods were extended onj31.01.2015 for one year.

3. On 07.11.2015, the appell^its appeared in the written examinations. The results ofthe written examinaiions were declared on 10.12.2015. Both LPA 635/2017 & 636/2017 Page 2 of[6] o the appellants were successful; they managed to secure over 60% in the written test. They were later invited for and participated in the interview that was held on 16.12.2015. By the Office Order dated 12.01.2016, the combined results ofthe written test and interview (along with assessment of performance/APR gradings) were declared. The appellants' names did not figure in the list; they were subsequently discharged with immediate effect from 03.02.2016.

4. The appellants complain of arbitrariness primarily on two counts, i.e. firstly that the successful clearing of the written test and more than satisfactory grades secured by them in the APR assessment, points out to arbitrary marking at the interview. As against the necessary grading of 36 marks, both the appellants were awarded 20 marks in the interview and they could not clear the grades because the scheme ofthe confirmation procedure required every candidate to obtain 60% minimum marks in every component at the process (written test, APR Grading and interview). Secondly it was urged that mandating a minimum 60%, in the interview process was excessive and arbitrary. In this context, the appellants cited the case of 'Ashok Yadav vs. State ofHaryana\ (1985) 4 SCC 417.

5. To say that earmarking disproportionately high percentage of minimum marks for interview, is unjust and unacceptable as substantive element which can be in any selection/requirement process.

6. Learned Single Judge on an overall assessment of the circumstances expressed opinion that there was no arbitrariness given the background that the appellants were unable to secure the minimum marks required ofthem ofwhich they had advance intimation. The learned Single Judge rejected LPA 635/2017 & 636/2017 Page 3 of[6] the allegations ofunfair marking levels at some stages of theproceedings.

7. Learned counsel has reiterated the grounds, urged and highlighted, that earmarking undue high percentage of marks for interview (60%) with a further requirement of having to qualify 60% of suchmarks as the minimum norm, is arbitrary. He also stated that both the appellants had vastly improved their performance - evidenced by the fact that they cleared the written test in the second round and were awarded 60% in the APR assessment. It was stated that the Interview Board has thus, unfairly assessed them and awarded highly depressed marks (20 out of60 and 25 out© of 60). The learned counsel also highlighted that the recommendations of the Screening Committee in this case, in fact, favour them but the RAILTEL appears to have gone by the discretion available to it in para 7 of Office Memorandum dated 21.07.2014. In this context, it is submitted that para 8 of that Office Memorandum required RAILTEL to issue periodic notices/ advisories to candidates whose performances have dipped, for any reason the procedure that was not followed in this case. It is evident from the factual narration that both the appellants were unsuccessful in the previous confirmation process; their periods ofprobation were extended by one year. ^ In-this duration they were expected and did participate in the second process, to be confirmed. Whilst their performance definitely improved, in that they cleared the written test and secured good gradings in the APR assessments, however, unfortunately they could not secure the minimum marks prescribed in the interview. It is clear that the Court noticed that the maximum marks earmarked for an interview is 60 marks (out of total possible of250 marks). Such earmarking of 60 marks out of250 marks LPA 635/2017 & 636/2017 Page 4 of[6] c works out to be 27%, a little over to 25% which cannot, per se, be called excessive. Likewise, the earmarking of minimum percentage of marks to be secured by every candidate too is not arbitrary - in fact, the Supreme Court by its two decisions have commented that such earmarking is to be done before the process begins.

8. As far as the allegations with respect to unfair marking etc. is concerned, the Court is not expected to consider this aspect as none of the Interview Board/Screening Committee members were impleaded nor have any allegations of mala fide or any specific complaints with respect to the method of questioning is made. Furthermore, whilst attacking the marking granted by the Screening Committee in one breath, the appellants at the same time relied upon the recommendations made by it, that they may be continued. This itself exposes the weakness of the arguments - in this case the Screening Committee, in fact, recommended in its wisdom that the appellants ought to be given one more chance therefore apparently, it was fair in its marking.

9. The last submission of the appellants' counsel with respect to the Office Memorandum dated 21.07.2014, is similarly unpersuasive. Para 7 of the above mentioned Office Memorandum, no doubt clothes the authority with discretion to accept or not, the recommendation but that is obvious. The Screening Committee's evaluation should be based upon on what it sees of the candidate during the process i.e. the conduct of the written test, APR grading and the marking given by the Interview Board, however, there could be other aspects too that the Authorities may take into consideration certain situations where the time gap between the recommendations and the LPA 635/2017 & 636/2017 Page.[5] of[6] ' -K,. passing of the order may show the improved performance or duration in the service; other aspects such as the behaviour during the interregnum period etc. Furthermore, the overall record too may ultimately have to be considered by the authority along with the performance in the confirmation process and the recommendations. Therefore, to say that the authorities ought to have followed the procedure in para 8 of the Office Memorandum, in our opinion lacks merit. The very fact that the appellants were put on notice and not confirmed because oftheir poor performance at the first stage meant that they had to show improvement. The confirmation process is noO only overall grading or merely based upon the performance at the job but also upon the knowledge and skill gained during the course of employment. Having regard to all these facts, we are of the opinion that the impugned judgment cannot be faulted. The appeals are therefore dismissed. CM No.35089/2017 in LPA No.635/2017 CM No.35092/2017 in LPA No.636/2017 Dismissed as infructuous.

S. RAVINDRA BHAT, J.

SEPTEMBER 25,2017 nn ILGAUR.J