G K MADIA Vs. G I D C

JUDGEMENT

(1.) As both these petitions are connected with each other and have been ordered to be tagged for final hearing, are being disposed of by this common judgment. The first petition being Special Civil Application no. 6663 of 1985 has been filed by the petitioners belonging to scheduled castes and scheduled tribes and for quashing and setting aside the appointment of respondent nos. 2 and 3 as Senior Officers in the respondent no. 1 Corporation and for a direction to the respondent no.1 Corporation to appoint the petitioners in their place with retrospective date of appointment with all benefits including pay etc. as if the petitioners have been appointed instead of respondent nos. 2 and 3. Alternatively, to quash and set aside the oral test/interviews held on 2.10.1985 for the recruitment to the post of Senior Officer, now re-designated as Assistant Manager and to direct GIDC to hold fresh oral test.

(2.) Brief facts of the petition in petition being Special Civil Application no. 6663 of 1985 are that the petitioner no.1 is a member of Scheduled Tribe and is entitled to be given preference as a member of the Scheduled Tribe. The petitioner no. 2 is also a member of Scheduled Caste and he is also entitled for similar preference. Both the petitioners are qualified to be appointed as Senior Officers. Both the petitioners fulfil the requirements regarding qualification, written test for the Senior Officers in the case of direct recruitment. The respondent Corporation vide its advertisement in the local newspaper Gujarat Samachar dated 6.4.1983 invited applications for the recruitment for the post of Senior Officers. The petitioners were called for preliminary written test which was held by the respondent Corporation on 17.6.1984 and both the petitioners appeared in the written test. 12 persons including the petitioner no.1 was initially selected for oral interviews which were to be held on 8th November, 1984. The petitioners gathered information that the petitioner no.1 had obtained 55 marks in the written test out of 100 marks, whereas the petitioner no.2 obtained 51 marks in the written test. The petitioner no.1 was informed for the interview which was scheduled to be held on 8.11.1984. By a letter dated 1.5.1985 the petitioner was informed that oral interviews were postponed an the next date was to be fixed. Lateron, the petitioners came to know that the said interviews which were scheduled to be held on 7/8.11.1984 were postponed at the instance of the Union. The petitioner no. 1 was informed by a letter dated 17.9.1985 that oral interviews were scheduled to be held on 28th September, 1985. The petitioner no.2 was also informed by a similar letter dated 17.9.1985. The responent no. 2 was also called for oral interview on 28th September, 1985. The petitioners also got the information that initially on 8.11.1984, only 12 persons were called for interviews. Thereafter, the number of candidates for interviews were malafide increased to 23. On 28th September, 1985, number of candidates called for interview were raised from 23 to 24. Ultimately, oral interviews were held on 2.10.1985 after about one year and the number of candidates called for interview was increased from 23 to 24. The petitioners were tested in the inteview for about 5 to 10 minutes. Several general questions were asked and the petitioners replied satisfactorily all questions. The petitioners' inteviews were conducted by four persons, namely Shri I.M.Balchandani, Corporate Personnel Manager; Shri M.M.Shah, Chief Accounts Officer; Shri H.B.Shah, Chief Engineer and Shri Hasmukh Vora, Board Member. Shri Basu had also joined the interview committee. Some candidates were also interviewed by the Board and some were interviewed by the members. When the petitioners were waiting outside for the interview, some senior office bearer of the employees Union had come there few minutes before the interviews had begun and he had whispered some words to one of the members of the committee, but the petitioners do not know the exact name of that person. The petitioners apprehend that thepetitioners might be taken to task. The members of the interview committee were enjoying high position, while the petitioners were serving as Assistants. The petitioners also got information that the respondent no.2 obtained only 37 marks in the written test an the respondent no. 3 obtained 41 marks. The mode and manner in which interviews were conducted were arbitrarily increased and the manner in which the members of the Union had access to the members of the interview commitee and the manner in which the oral interview was conducted clearly suggested that the oral interviews were only a farce. The respondent Corporation has already pre-determined to select respondent nos. 2 and 3. Hence, the petitioners wrote a letter dated 3.10.1985 to the respondetn no.1. It is also stated that the respondent Corporation has arbitrarily and capriciously appointed respondent nos. 2 and 3 to the post of Senior Officers pursuant to the advertisement stated above. With ultirior motive, the list of marks obtained by the candidates has not been published. Finally, marks given to the canidates have also not been supplied to the petitioners. Inspite of requests made, the number of total marks obtained in the written test have not been given to the petitioners. In that respect, the petitioner no. 2 sent a letter dated 28th November, 1985 to the respondent Corporation for the marks obtained by the petitioner no. 2 in the written and oral test. But no reply has been received. Lateron, the Corporation has replied that they cannot be supplied the number or marks obtained by the petitioner no. 2. The respondent nos. 2 and 3 are also members of Scheduled Caste and Scheduled Tribes. Both the respondents were agitating for promotion and deemed seniority. For that purpose, the respondent no. 2 filed a petition in this Court being Special Civil Application no. 1146 of 1981 against the respondent Corporation claiming deemed date of seniority as Junior Officer. The respondent no. 2 has got considerable influence in the Employees Union of the respondent Corporation and the petitioners apprehended that at the instance of the Union, the respondent nos. 2 and 3 have been illegally and arbitrarily appointed as Senior Officers ignoring the legitimate claim of the petitioners in the process. The selection of the respondent nos. 2 and 3 is vitiated on the ground of malafide, arbitrariness and in contrvention of the provisions of Articles 14 and 16 of the Constitution of India. The petitioners who are having merits, than the respondent nos. 2 and 3 have been side-tracked only with a view to please the Union. High number of marks have been given in the oral interviews as a result of which the entire selection procedure is vitiated. The allocation of 12.2 percent of marks in the oral interviews vitiate the selection. The number of posts to be filled were three and the number of candiates were called for 24 which is almost 8 times to the number of posts to be filled. As per the decision of the Hon'ble Supreme Court, the number of candidates should not exceed 2 to 3 times of the number of vacancies. As such, arbitrary increase in the number from 12 to 24 with ulterior motive vitiates the process.

(3.) Affidavit-in-reply has also been filed by the respondent no.1 wherein it is stated that one of the questions which was pending for discussion and decision with the Union was about the promotion policy to be adopted by the respondent Corporation. This policy came to be decided only in the year 1985, as a result of which the recruitment was to be 60% by promotion and 40% by direct recruitment in future. It is admitted that originally 12 persons were called for interview. Those 12 persons consisted of 10 candidates from the general category and two canidates from scheduled tribe were at the top of respective list of candidates. However, four vacancies were required to be filled in if suitable candidates were available i.e. two from scheduled tribe candidates, one from scheduled caste candidates and one from socially and economically backward class. However, if no suitable candidates could be available from these categories. Therefore, 10 candidates from the general candidates were called. It was considered by the Corporation that if two two scheduled tribes candidates are to be appointed, then, at least high number of candidates should be called for interview so that there can be selection on the basis of the merits. Similarly for filling up the post of one scheduled caste candidate and one SEBC candidates, more candidate who belong to those classes should also be called so that suitable candidates from those categories could be available and can be selected. As a result, total number of candidates who were called for interviews consisted of 10 general category candidates, six SC candidates and five ST candidates and three SEBC candidates. The number of 10 candidates from general category was only as a measure of stand-by so that in the event it became necessary on account of non-availability of suitable candidates of the reserved category, the candidates from the general category can be appointed. Thus, the number of candidates called for interview was 24 for filling up the four posts above-mentioned. It was made clear that all the four posts which were required to be filled up if suitable candidates were found by appointing two candidates from the S.T. and one each from the S.C. and SEBC. The candidates were interviewed for 15 to 20 minutes which were sufficient to judge the relative merit and demerit of the candidates. interviewed. The fact is denied that the candidates were interviewed by four named persons and some of the candidates were interviewed by five persons including the four named members and Shri Basu, Chief Executive Officer. In fact, all the candidates were interviewed by all the five members. The selection committee consisted of very high ranking officers who have judged the relative merits and demerits of the appointees objectively and without any other considerations. The fact is also denied that high ranking officers could be influenced by the representatives of the Union and the allegations made against the members of the committee are baseless, scandalous and concocted for the purpose of filing this petition. The first 10 candidates who obtained highest marks from the general category were called for interviews. So far as SC, ST and SEBC candidates were concerned, all the candidates who passed with 35 or more percentage of marks were called for interviews. One Mr. M.D.Asari filed a petition being Special Civil Application No. 3570 of 1985 and this Court passed an order that the petitioner was a junior officer in GIDC (Enquiring branch). One of the prayers in that petition was that he had already applied for direct recruitment to the post of Senior Officer and he may be considered for direct recruitment also alongwith the claim for promotion an in promotion quota. The petitioner's claim is that he has a right to the post on the basis of reservation which is applicable to the respondent Corporation and on the basis of the roster point by promotion also. The Corporation was directed on the assurance given by Mr. Dave, the petitioner as direct recruitment in accordance with the rules in existence even on reservation quota, if applicable and that petition was permitted to be withdrawn. The respondents have been appointed on the basis of their merits and not on account of pendency of alleged departmental inquiry against other candidates. But it was also denied tht the respondents were appointed only to please the Union or their appointment was arbitrary or violative of Articles 14 and 16 of the Constitution of India. The post of Senior Officer is not only an administrative post, but he has to deal with the members of the public, sell plots and sheds in the industrial estates of the Corporation and has to perform the functions of a public relations officer and a salesman. The suitability of candidates has to be judged with reference to the post to which he is appointed. Other allegations regarding arbitrariness and ulterior motive have been denied.