Prasanna C. Nikhade & Anr v. Chairman and Managing Director of Air India

1. As these thi-ee writ petitions involve a similar issue with identical facts, aie being decided by this common order. The petitioners in these petitions belong to OBC and SC categories.

2. The facts are being culled out from Writ Petition No.6436/2015. The respondent Air India Limited had issued an advertisement dated February 27, 2015 for filling up post of Senior Trainee Pilot with A-320 Endorsement to be recruited after being declared successful in Simulator Proficiency Assessment Check (SPAC) and personal interview only. The appointment was to be on contract basis for 5 years. The petitioners applied for the said post. They were informed vide e-mail dated March 28, 2015 to have been provisionally shortlisted for conduct of tests and were intimated to be presem for SPAC test at Secunderabad on April 09, 2015 by depositing fee ofRs.20,000/- towards the test and verification of documents. The respondent published the result of SPAC in April, 2015 and the petitioners were declared successfiil. Accordingly, the petitioners were called for interview on April 22, 2015 (petitioner in W.P.(C) I! I. mLIiiEniiBE The petitioners were interviewed on the respective dates, referred to above.

3. Mr. Rajiv Manglik, learned counsel for the petitioners would submit, that in tems of the advertisement, the selection was to be based onSPAC and personal interview. It is his submission that the information gathered by the petitioner(s) through media was that the respondent also conducted the psychometric test, without following the procedure laid down for the psychometric test worldwide and only resorting to by incorporating a Psychiatrist in the panel ofinterviewers. Wlien the results were declared, the petitioners' names were not included in the list of successfiil candidates primarily on the basis ofpsychometric evaluation. Despite representation by the Air Corporations' SC/ST Employees Association to the respondent providing relaxation to the candidates belonging to the reserved categories, their request has not been acceded to. He would also state, that the criteria for selection was 80 marks weightage for SPAC and qualifying marks being 70% and 20 marks weightage for personal interview. According to him, the petitioner in W.P.(C) No.6436/2015 had obtained 10.80 marks out of 20 marks in attention to para 8 of the counter-affidavit to contend the stand of the respondent that the reasons for not getting selected was primarily the petitioners had not secured the qualifying marks of 13 i.e. 65% in the interview for SC/ST/OBC candidates. According to him, the requirement of qualifying marks in the interview was neither the criteria nor stipulated in the advertisement. It is his case, that the stipulation of such acriteria, that too after the selection process has started, is illegal and contrary to the settled position oflaw by the Supreme Court in the following cases:-

(i) AIR 2008 SC2103 (1) HemaniMalhotm vs. High Court ofDelhi;

(li) AIR 2008 SC1470K. Manjusree, etc vs. State ofA.P. andAnn;

(Hi) AIR 2014 SC 1570 Bishmi Biswas and others vs. Union ofIndia and ors.

4. On the othei hand, Mr. Lalit Bhasin, learned counsel appearing for the respondent would justify the selection and state that the petitioners were not rejected on the basis oi psychologist evaluation but it is a case where the petitioners did not secure the required 13 qualifying marks in the interview. On aspecific query from the Court, whether the qualifying marks for the intei-view were prescribed in the advertisement, the answerwas in the negative. But he would lay stress on the fact that in a subsequent advertisement, the petitioners had applied for the same post -lianniKi J Candidates, who had quahfied the same were subjected to psychometric test and further the candidates qualified/declared fit in psychometric test, were required to appear for the personal interview. All the four petitioners have applied for the said post. Mr. Rajesh Dagar, petitioner in W.P.(C) No.6436/2015 had appeared in the Aptitude and Technical Knowledge test, which he qualified but did not qualify the psychometric test. Similarly, Mr. Rahul Panchal, petitioner in W.P.(C) No.6705/2015 applied and appeared for Aptitude and Technical Knowledge test but did not qualify both the papers. Mr. Prasamia C. Nikhade, petitioner No.l in W.P.(C) No.6487/2015 even tliough applied for the post but did not appear for the Aptitude and Technical Knowledge test. Similarly, Mr. Ajay Dilip Chaudhari, petitioner No.2 in W.P.(C) No.6487/2015 did not qualify the Aptitude and Teclinical Knowledge test.

5. It is his submission that the petitioner namely Rajesh Dagar, having failed in the psychometric test in the subsequent selection, he cannot be appointed, even if he succeeds in this petition as psychometric test has become very relevant in the process of selection in view of a recent incident happened in Germany. According to him, the said petitioner is issue that is raised in the writ petition is that without there being a stipulation in the Rules and.Advertisement for, a psychometric test/ presence of a psychologist in me interview board, the rejection of the petitioners candidature sok i.y based on an assessment through psychometric test/psychologist is not tenable. Suffice to state, that in para 8 oftheir counter-affidavit, the respondent has stated as under:- "8. Isay that the candidates were not rejected on the basis ofthe psychologist s evaluation. Only those candidates were notselected who failed to achieve the minimum qualifying marks 70% for General or 65% for SC/ST/OBC candidates in the Personal Interview. Total marksfor Personal Interview were 20. Petitioner being an OBC candidate, to qualify in the Personal Interview was required to obtain 13 mdrlcs, however, the Petitioner in the Personal Interview scored 10.80 marks out of 20 marlcs. Therefore, was not selected. "

7. From the perusal ofthe aforesaid stand, it is clear that the rejection of the petitioner's candidature 'vas not on the basis of any input or a conclusion drawn by the psychologist. In other words, it is for other reasons other than the psychological test the petitioners were not selected. The other reasons, noted from the averments, are that the petitioners had not secured the qualifying marks in the interview. In support ofthis stand, the respondent in their counter affidavit has apart from para 8, in para 11 (c) (rumiing page No. 57) and also in para 11 (f) (at running pages 59-60) l^IilEO!] -( Criteria for selection A) Simulator Proficiency Assessment Check (note: Qualifying marksfor SPAC is 70% for all Categories (including SC/ST/OBC) B) Personal Interview Personality 10 marks General 10 marks Knowledge & awareness aboutpresent scenario of civil Aviation in India. (Note: The minimum qualifying marks for the SC/ST/OBC category in the personal interview was 13 marks out of20 marks.) Total Weishtase 80 marks 20 marks 100 marks Candidates with minimum qualifying marks in the Personal Interview were considered as 'Qualified'. The qualifying marks were 14 for General Candidates and 13 for the SC, ST and OBC candidates, which is the relair.d standard laid downfor the reserved category ofOBC to which thepetitioner belongs. 11(f) The petitioner belonging to OBC category, applied for the, post of Sr. Trainee pilot (with endorsement of A-320) vide his application dated 02.03.2015. On scrutiny of the Petitioner Application, petitioner was found eligible and was informed to appearfor SPAC on 10.04.2015, at Central Training Establishment, Air India Ltd, Hyderabad. Petitioner after qualifying the SPAC, vide email dated 22.04.2015, v/as directed to appear for Personal Interview on 07.05.2015. The Petitioner in the Personal Interview was required to obtain the above minimum qualifying marks - i.e 13 (65%for SC/ST/OBC) out of2Omarkin the Personal Interview. The • ipmmmiF-n were prescribed for intei-view, which the petitioners have not secured. The submission ofMr. Manglilc, by relying on the reply dated July 31, 2015 to the RTI application made by one Mr. Chandra Shekhar Barua dated against points No.3 and 10, that no cut off marks for the interview were ever stipulated and even if stipulated, the same were after the advertisement was issued whereby the selection process had commenced are concerned, on the first aspect, the counter-affidavit filed by the respondent is very clear; it reiterates at different places, the fact, that they had prescribed 13 marks as the qualifying marks for interview. Even if, it is the case ofthe petitioners, based on the judgments in HemaniMalhotra (supra), K. Manjusree (supra) and Bishu Biswas (supra), that the qualifying marks have been prescribed after the advertisement/selection process has been initiated, firstly, in the case of Hemam Malhotra (supra), the Supreme Court in para 9, has held as under:- "9. From the proposition of law laid down by this Court in the above mentioned case itis evident thatprevious procedure was not to have any minimum marks for vive-voce. Therefore, prescrihinp minimum marks for vive-voce was not permissible at all after written test M'as conducted. There is no manner of doubt that the authority making rules resiilatin^ the selection can pre.scrihp. hv rules the minimum marks both for written examination and vrvp.voce, but ifminimum marks are not prescribed for vive-voce beforp the commencement ofselection process, the authority cnjir.pmpd^ -A / ^ r

9. In the case of K. Manjusree (supra), the Supreme Court in para 29 has held as under:-

proceeded on the basis that there will be no minimum marks for the interview."

10. Insofar as the judgement in the case of Bishnu Biswas and ors (supra) is concerned, the Supreme Court, in para 20 has held as under;- "20. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiationof theselection process. The marks allocatedfor the oral interview had been the same asfor written test i.e 50%for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47marlis outof50 in the written test had been given only 20 marks in the interview while large number of candidates got -LJ L11!_L candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would he ineligible at least in respect ofage as the advertisement was issuedmore than sixyears ago. "

11. Even though Mr. Manglik had referred to the aforesaid judgments neither such a case has been set up by the petitioners in their petition nor in the rejoinder, that the Rules pertaining to the selection have been changed during the selection process or after the selection process to the prejudice of the petitioners to benefit persons, who did not fare well in SPAC. The case as set up in the petition has already been referi'ed to and dealt with in the previous paragraphs. The petitioners in their rejoinder affidavit have primarily highlighted the reply given to the RTI application to Mr. Chandra Shekhar Barua and the alleged contradictions in the reply to the RTI application and the counter affidavit. Surely, a petitioner canvassing a particular case mustnecessarily pleadthe same to enable the other party meet the case. Inthe case in hand, what has been argued by Mr. Manglik, has not been pleaded even in the rejoinder. In the absence ofsuch a case, having been pleaded, this submission is also rejected.

12. Accordingly, the challenge ofthepetitioners to the rejection oftheir candidature is without any merit and the petitions are liable to be - A CM No.11715/2015 in W.P.(Q 6436/2015 CM No.l 1825/2015 in W.P.(C) 6487/2015 •>0