Chepyala Aravind Rao v. The Union Of India, Rep. By Its Under Secretary To

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO WVMP.No.3942 of 2016 & WVMP(SR).No.207426 of 2016 in / and WP.No.26043 of 2016 COMMON ORDER :

An extent of Acs.2.31 guntas in Survey No.266/A belonging to petitioner's father was acquired for the benefit of the National Thermal Power Corporation (for short, 'NTPC'), and an award being Award No.7 vide proceedings No.B/441/79 was passed, granting compensation.

2.

The petitioner's father died on 04.06.1992. Land oustees or their kith and kin were also entitled to seek employment in the NTPC, but the petitioner's father did not avail this benefit. The petitioner was, at that time, a minor, but subsequently he passed Secondary School Certificate, I.T.I. (Electrical) and contends that he is eligible for appointment in the category of a land oustee. 3.

An employment notification No.2/13 dt.09.07.2013 was issued by the NTPC requesting the Employment Exchange, Karimnagar to sponsor names of eligible land oustees for recruitment to the post of Junior Mazdoors (W0 Grade) before 30.07.2013. 4.

The petitioner approached the Revenue Divisional Officer, Peddapalli on coming to know of the said notification and requested

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him to recommend his case as nominee of his father who was a land oustee, and also to recommend his name to the Employment Exchange as a nominee of the land oustee and to inform the District Employment Officer, Employment Exchange to sponsor his name to NTPC along with other eligible land oustees for securing employment therein.

5.

When this was not considered by the Revenue Divisional Officer, Peddapalli, the petitioner filed W.P.No.22343 of 2013 before this Court.

6.

On 29.07.2013, the said Writ Petition was disposed of directing the petitioner to approach the Revenue Divisional Officer, Peddapalli claiming his status as a land oustee, duly enclosing all the material in support of his claim within a period of two (02) weeks from that day; and on receipt of petitioner's application, the latter was directed to conduct an enquiry into the status of petitioner and if the petitioner is found to be a land oustee, to recommend to the District Employment Officer, District Employment Exchange, Karimnagar. This Court directed the District Employment Officer to then sponsor the name of petitioner to the NTPC within a period of eight (08) weeks thereafter for necessary action.

7.

Thereafter, the Revenue Divisional Officer, Peddapalli passed order on 10.09.2013 rejecting petitioner's claim on the ground that petitioner's father, during his lifetime, declared himself as a nominee,

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that this was approved by the Collector, Karimnagar on 13.09.1989 for providing employment under the land oustees quota, and it is not possible to change the nominee after a lapse of twenty-three years. THE PLEAS OF THE PETITIONER 8.

The petitioner contends that one Medipalli Shankaraiah, a person who was similarly situated like the petitioner, approached this Court and filed W.P.No.26683 of 2014 and on 10.09.2014 in WPMP.No.33338 of 2014, this Court granted an interim direction to the respondents to consider the said person's claim for appointment as Junior Mazdoor in the existing vacancies, if any, pursuant to notification dt.18.07.2013 and 02.09.2013 issued by the 1st respondent de hors the rejection order dt.21.10.2013 issued by the Revenue Divisional Officer, Peddapalli.

9.

The petitioner contends that the 7th respondent published a notification in newspapers stating that he requested the District Employment Officer, Employment Exchange through a notification No.2/2015 dt.15.05.2015 for sponsoring eligible candidates for filling up of 25 posts of Junior Mazdoor (W0 Grade) in the NTPC, and that these posts are specifically notified for being filled up exclusively by eligible land oustees.

10.

The petitioner then filed WP.No.35080 of 2015, and on 08.10.2015 in WPMP.No.45079 of 2015, this Court granted an interim order directing the respondents to consider the case of

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petitioner for appointment as Junior Mazdoor (W0 Grade) in the existing vacancies pursuant to the notification dt.15.05.2015 de hors the rejection order issued vide Memo No.B/2980/2013 dt.10.09.2013 passed by the Revenue Divisional Officer, Peddapalli, Karimnagar District, subject to his satisfying other eligibility criteria. 11.

Thereafter, the Revenue Divisional Officer, Peddapalli, addressed a letter No.B1/3534/2013 dt.11.12.2015 directing the District Employment Officer, District Employment Exchange, Karimnagar to treat the petitioner as a nominee of his late father who was a land oustee.

12.

Consequently, the District Employment Officer, Employment Exchange, Karimnagar, addressed a letter No.A2/NTPC/236/2015 dt.17.12.2015 to the 7th respondent sponsoring petitioner's name for consideration for appointment to the post of Junior Mazdoor (W0 Grade) in the NTPC in the land oustee category. 13.

The petitioner was issued an interview call letter vide Ref.No.09/HR-IE/Rectt/Jr.Mazdoor/SR463 dt.24.12.2015, asking him to appear for interview before the NTPC Selection Board at 08:45 a.m. on 31.12.2015 in the Office of the NTPC in Secunderabad with requisite documents, and the interview was to take place on 31.12.2015. However, the results of the interview were not declared. 14.

The petitioner contends that the Hon'ble Prime Minister made an announcement from the Red Fort on 15.08.2015 that in all

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Government recruitments for the lower level posts, i.e., Group 'C' and 'D' and non-Gazetted posts of Group 'B' category, the practice of selection by conducting oral interview is to be dispensed with and that, the Department of Personnel and Training, Government of India held a meeting on 14.09.2015 and 09.10.2015, and also decided to dispense with the practice of interview for the above category of posts and to request the authorities to amend the recruitment rules immediately.

15.

He contends that pursuant to this decision of the Department of Personnel Training, the Union of India issued guidelines vide Office Memorandum F.No. DPE - GM - 01/0001/2015 - GM - FTS - 4857 dt.14.12.2015 requesting all the Ministries / Departments to advise Central Public Sector Enterprises such as the NTPC under their administrative control to adopt a revised mechanism of recruitment for the non-executive level posts by dispensing with the interview for such posts by effecting suitable amendments to the existing recruitment rules where necessary; and that in case of any particular post, if interview was considered to be essential, the clearance of the administrative Ministry / Department of the concerned Central Public Sector enterprises would be needed or, alternatively such enterprises should adopt alternative modalities to assess the required skills for recruitment to such posts in consultation with the concerned administrative Ministry / Department. He also contended that this Office Memorandum directed the Union of India to complete the

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above exercise by 31.12.2015 and send a compliance report to the Director of Department of Public Enterprises by the concerned administrative Ministry / Department by 07.01.2016; and pursuant to this decision, the Ministry of Heavy Industries and Public Enterprises, Union of India, Department of Public Enterprises issued a Office Memorandum No.39020/01/2013-Estt(B)-Part dt.29.12.2015 for implementation of the guidelines with regard to 'No interview Requirement Proposal'.

16.

The petitioner contends that in spite of being aware of the communication dt.14.12.2015 issued by the Ministry of Personnel, Union of India, with regard to the above mentioned guidelines, the NTPC Limited instead of dispensing with the conduct of oral interview for recruitment to the post of Junior Mazdoor (W0 Grade), issued call letters on 15.12.2015 to petitioner and other candidates to appear for the interview scheduled from 26th to 31st December, 2015, and the petitioner was also issued a call letter dt.24.12.2015 to appear for interview on 31.12.2015.

17.

The petitioner contends that in spite of being fully aware that there cannot be an interview for recruitment to the post of Junior Mazdoor (W0 Grade) in view of the instructions of the Ministry of Personnel Training as well as the Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises, the NTPC went ahead with the interview and this action of the NTPC is illegal and contrary to the guidelines issued by the Government of India.

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18.

It is contended by petitioner that interviews were conducted in a hasty manner and certain reports appeared in newspapers on 08.01.2016 with regard to illegalities and irregularities committed by the NTPC in the selection process. He also contended that the 9th respondent, who was the external member of the interview selection committee, refused to sign the valuation of marks awarded in the oral interview on the ground that there were illegalities and irregularities committed in the selection; and he also requested the NTPC to follow the directives of the Government of India and conduct a written test in order to have transparency. It was also alleged that there was considerable political influence upon the selection committee members in the procedure of selection, and the officials of NTPC as well as 9th respondent succumbed to those pressures and finalized the selection process.

19.

The petitioner contends that there is no explanation by the NTPC as to why it has not followed the directions of the Government of India and dispensed with the conduct of the interview for recruitment to the lower grade posts such as Junior Mazdoor and if the recruitment is based only on the basis of oral interview, there is every possibility of malpractice in the selection process. He alleged that if the written test is conducted and recruitment is made on the basis of marks obtained therein, there would not be any scope for illegalities and the best person would get selected.

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20.

So, the petitioner filed the present Writ Petition to declare the recruitment process undertaken by the NTPC Ltd pursuant to the employment notification No.2/2015 dt.15.05.2015 issued by the 7th respondent for filling up 25 posts of Junior Mazdoors (W0 Grade) by conducting oral interview instead of written examination is illegal, arbitrary and contrary to the directions of respondent nos.1 and 2; to set aside the entire selection process; and to direct the respondents to undertake selection process afresh by conducting the written test as per the specified guidelines issued by the 1st respondent on 14.12.2015 and the Office Memorandum issued by the 2nd respondent on 29.12.2015.

21.

The petitioner herein also filed WPMP.No.32196 of 2016 seeking stay of all further proceedings pursuant to the above recruitment process.

22.

On 04.08.2016, this Court issued Notice Before Admission and granted stay of all further proceedings pursuant to the employment notification No.2/2015 dt.15.05.2015 on the ground that the mode of recruitment adopted by the NTPC by way of oral interview was contrary to the office memorandum dt.14.12.2015 of the 1st respondent and office memorandum dt.29.12.2015 of the 2nd respondent.

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THE COUNTER OF THE RESPONDENT Nos.3 to 7 & 10. 23.

WVMP.No.3942 of 2016 in WPMP.No.32196 of 2016 in WP.No.26043 of 2016 is filed by respondent nos.3 to 7 to vacate the order dt.04.08.2016 granted by this Court.

24.

In the Counter affidavit, while admitting that the post of Junior Mazdoor (W0 grade) is a non-executive post, it is contended by respondent nos.3 to 7 that as per the recruitment policy and practice of the NTPC, recruitment to the said post is done by conduct of interview by a constituted Selection Committee and that was why in the notification issued on 15.05.2015 only interview was mentioned. It was stated that interviews were conducted between 26.12.2015 to 31.12.2015 and petitioner and 330 other candidates attended the interview, that the recruitment process under the notification dt.15.05.2015 stood completed, and declaration of results of the selected candidates was pending, which came to be stayed by this Court through the above interim order.

25.

It is also contended that the petitioner, having participated in the selection process without raising any objection, has filed the present Writ Petition placing reliance on the Office Memoranda dt.14.12.2015 and 29.12.2015, issued by the Union of India. They contend that these documents show that the Union of India had directed that written test be conducted in all public enterprises instead of interview for recruitment to Group 'C' and 'D', i.e., non-executive level posts with effect from 01.01.2016 and in the Memoranda

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dt.14.12.2015 necessary amendments to recruitment policy of certain public enterprises were directed to be made.

26.

The NTPC further contends that there was urgency involved in the matter since there was a lot of pressure on it from land oustees' Association to conduct recruitment and that was why it was decided to complete the selection process before 31.12.2015. It is stated that the said Association conducted hartal and dharna before the Office of the Ramagundam Thermal Power Station and office of the NTPC at Hyderabad on several occasions to bring pressure on it causing grave inconvenience to its functioning; that the said Association also made representations to the Government; and a meeting took place in the chambers of the Hon'ble Home Minister, Government of Telangana on 18.07.2014 and it was agreed that the recruitment would be completed within one month.

It was stated that when it was not done, again the Association started agitation and hartal and so another meeting was held on 12.03.2015 and the NTPC was directed to conduct the recruitment process immediately. It is stated that if written test had to be conducted, the NTPC would have had to withdraw the notification dt.15.05.2015, amend its recruitment policy incorporating the criteria of written test in the place of interview and then issue a fresh notification providing for conduct of written test.

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2015. It is also stated that the Office Memoranda issued by the Union of India are not binding on the NTPC unless they are adopted by it and necessary amendments are made to the recommended policies / regulations.

27.

It is also stated that pursuant to the issuance of Office Memoranda, the NTPC is taking steps to amend its recruitment policy. It was denied that the 9th respondent raised any objection at the time of interview or thereafter and it is asserted that he appended his signature to the Minutes of the Selection Committee without raising any objection. It was also denied that he recommended the NTPC to follow the directives of Government of India and conduct written test to have transparency and to avoid interview. It was denied that there were any illegalities in the selection process with regard to the awarding of marks or that there was political influence by the selection members.

28.

The 10th respondent who was impleaded in the Writ Petition by order dt.16.11.2016 also supported the stand of the NTPC, and filed WVMP.(SR).No.207426 of 2016 to vacate the interim order. THE REPLY AFFIDAVIT OF PETITIONER 29.

Reply-affidavit was filed by petitioner contending that if the NTPC had taken a decision to undertake recruitment of Junior Mazdoor post, and a meeting was held way back on 18.07.2014 and 12.03.2015, there was no urgency in the matter and once, the

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Government of India banned interview as a mode of selection for Junior Level posts in Group 'C' and 'D' category, it could not have fixed the date of interviews from 26.12.2015 to 31.12.2015, and it was done only to see that the interviews were completed before the implementation of the Office Memoranda issued on 09.10.2015 and 14.12.2015 by the Government of India. He reiterated that in the letter of the Department of Personnel Training dt.09.10.2015 and the subsequent letter from the Director (Administration), Ministry of Power, Government of India dt.30.10.2015 addressed to the Chairman and Managing Director of NTPC, it was directed to take necessary steps to carry out requisite amendment to the recruitment rules.

Once such a direction was issued, it should be done immediately and the directive of the Ministry of Power, Government of India to implement 'No interview recruitment' should be adhered to and a status report had to be sent by 30.10.2015. It is also stated that no specific permission or clearance was obtained by the NTPC from their administrative Ministry, i.e., the Ministry of Power or from the Secretary, Department of Personnel Training, Government of India to proceed with the selection process without written test and only by way of interview. It is therefore contended that only with a mala fide intention to complete the process of recruitment through interview and select candidates of their choice by awarding marks in an arbitrary manner under external influence, the interviews were conducted by the Interview Committee between 26.12.

2015 and 31.12.2015.

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Union of India and the recruitment process cannot be done as per the whims and desires of officials who have vested interest in the recruitment process. The petitioner contends that since the results of the interview were not declared and since the petitioner had challenged the same immediately after coming to know about the alleged illegalities and irregularities in the conduct of the interview process, the petitioner cannot be termed as an 'inclusive candidate' who is not entitled to challenge selection after participating in the selection process. It is also asserted that after interviews were completed on 31.12.2015, no results were published even after a lapse of seven months though as per normal recruitment rules the selection of candidates must be finalized on the last date, i.e., on 31.12.2015.

The petitioner contends that the NTPC had deliberately delayed the selection of candidates and that the signature of the external committee member was taken in the last week of June, 2016 or in the first week of July, 2016 as mentioned in newspaper reports. THE CONSIDERATION BY THE COURT 30.

Sri V. Ravi Kiran Rao, counsel for the petitioner reiterated the pleadings taken by the petitioner. Sri C.V. Mohan Reddy, Senior Counsel appearing for Sri S. Sriram Reddy, counsel for respondent nos.3 to 7, supported the stand taken by the NTPC in its counteraffidavit / vacate stay petition. Sri P. Prabhakar Reddy, counsel for 10th respondent supported the stand of the NTPC.

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31.

From the respective contentions of the parties, the question arises whether the action of the NTPC in proceeding with selection of Junior Mazdoor (W0 Grade) pursuant to the Employment Notification No.2/2015 and the requisition dt.15.05.2015 issued by it to the Employment Officer, District Employment Office, Karimnagar, pursuant to which interviews were held between 26.12.2015 to 31.12.2015 and the selections made pursuant thereto are valid or not. 32.

The facts pleaded by the respective parties indicate that 25 posts of Junior Mazdoor were notified by the NPTC vide Notification No.2/2015 dt.15.05.2015 to the Employment Exchange, Karimnagar for sponsoring names of land oustees of the Ramagundam Super Thermal Power Station. The post of Junior Mazdoor (W0 Grade) is a Group 'D' post, and the notification itself contemplated that the posts would be filled up on the basis of interview subject to medical fitness on production of caste certificate, educational qualification, proof of age and land oustee patta, etc., and High Court orders. 33.

It is not in dispute that the Hon'ble the Prime Minister of India made an announcement from the Red Fort on 15.08.2015 that in all Government recruitments for lower level posts, i.e., Group 'C' and 'D' and non-Gazetted posts of Group 'B' category, the practice of selection by conducting an oral interview is to be dispensed with. 34.

The contention of petitioner that pursuant to this announcement of the Honourable the Prime Minister of India, the Department of

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Personnel and Training, Government of India held a meeting on 14.09.2015 and 09.10.2015 and directed to dispense with the practice of interview for all Group 'C' and 'D' posts and non-Gazetted posts of Group 'B' category and requested authorities to amend the recruitment rules, immediately is also not disputed by the NTPC. 35.

The Department of Public Enterprises, Ministry of Heavy Industries and Public Enterprises, Government of India addressed a letter dt.14.12.2015 to all Central Public Sector Enterprises including the NTPC about the above decision taken by the Department of Personnel and Training, and stated that all Ministries / Departments should advise the Central Public Sector Enterprises under their administrative control to adopt a revised mechanism of recruitment for the non-executive level posts for dispensing with the practice of interview for such posts by effecting suitable amendment to the existing recruitment rules, wherever necessary.

It further stated in case of any particular post, if interview is considered essential, the clearance of the administrative Ministry / Department of the concerned Central Public Sector Enterprise would need be obtained by it or alternatively such enterprises may adopt alternate modalities to assess the required skills for recruitment to such posts in consultation with the concerned administrative Ministry / Department. It further directed the completion of this exercise by 31.12.

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Ministry / Department by 07.01.2016. Copy of this Office memorandum dt.14.12.2015 was marked to the Chief Executives of all the Public Sector Enterprises, and its receipt by the NTPC is not disputed.

36.

Instead of complying with this directive dt.14.12.2015 and withdrawing the notification No.2/2015 dt.15.05.2015 issued by it which provided for selection for Junior Mazdoor (0 Grade) posts by interview, the NTPC not only ignored it but also took no steps whatsoever to amend the existing recruitment rules by dispensing with the requirement of interview or to obtain clearance from the Power Ministry, which is the administrative ministry dealing with its affairs to continue with the process of selection by adopting the method of interview. It dispatched the call letter to petitioner on 24.12.2015 fixing 31.12.2015 as the date for interview. Similarly, letter was issued to the 10th respondent on 15.12.2015.

37.

Another office memorandum dt.29.12.2015 was issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions to discontinue with the process of interview at junior level posts in the Government of India stating that the timeline set regarding the completion of the process of discontinuation of interview by 31.12.2015 has to be adhered strictly, and that from 01.01.2016 there would be no recruitment with interview at junior level posts. It further stated that all the advertisements with future vacancies will be without interview as part of the recruitment process.

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38.

On 31.12.2015, another office memorandum was issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India seeking information from all the Ministries on the action taken on the proposal for discontinuation of interview at the lower level posts. 39.

A startling defence is taken in the counter filed by the NTPC that only interview was contemplated in the notification issued by it for filling up of the posts of Junior Mazdoor (W0 Grade) which is a non-executive post, and that the Office Memorandum issued by the Union of India are not binding on it unless they adopted by it and necessary amendments are made to the recruitment policy / regulations. However, in the same breadth, it is stated that pursuant to the office memorandum it is taking steps to amend its recruitment policy. If the plea of the NTPC that the Office Memoranda issued by the 1st respondent are not binding on it unless they are adopted by it, it ought to explain why in the same breadth it has taken a plea that pursuant to the Office Memoranda it is amending its recruitment policy. No explanation is forthcoming in this regard. 40.

Another plea raised was that there was pressure from the land oustees' association and meetings were held in the chamber of the Honourable Home Minister, Government of Telangana on 18.07.2014 and 12.03.2015, and even though the Office Memorandum dt.14.12.2015 was received by it, since acting upon the same would cause a lot of delay in the recruitment process and since considerable

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delay had already occurred, it proceeded to ignore the Office Memoranda which prohibited conduct of interviews for selection to the posts such as Junior Mazdoor. If the matter had been pending prior to July, 2014 and the subject notification was issued only on 15.05.2015 and interviews were scheduled between 26.12.2015 and 13.12.2015, what grave urgency propelled the NTPC to complete the process of interviews in defiance of the Office Memoranda issued by the Union of India is not explained. It is true that there would be a further short delay if the notification No.2/2015 dt.15.05.2015 is withdrawn, amendment of the recruitment rules (by deleting the mode of interview for selection to posts of this nature) is made, and a fresh notification is issued for filling up the posts accordingly without interviews.

But if such process promotes transparency and is in conformity with the directives of the Union of India and is in conformity with Art.14, it was worth it. It is said that if there is a will there is a way, but the respondents have not explained why if they had the will, they could not find a way.

41.

Another contention raised was that the petitioner participated in the selection process without raising any objection and so he could not have filed the Writ Petition insisting that there should be written tests and not interview for selection to the post of Junior Mazdoor (W0grade). This contention is untenable for the simple reason if the Government of India as a policy decision opined that the interview mode ought not to be applied to non-executive posts, the petitioner

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cannot be expected to keep quiet and allow the recruitment to proceed in a manner contrary to the directives of the Union of India which are binding on the NTPC. Also, admittedly, for a period of seven months elapsed after the interviews were held, but the NTPC had not declared the results of petitioner. So suspecting some extraneous reason for the same in view of certain newspaper reports mentioned in the affidavit he approached this Court on 03.08.2016. No valid explanation is forthcoming from the respondents why, after the interviews were held in the end of December, 2015, the results of the selection were not announced till petitioner filed the Writ Petition on 03.08.2016 and thereafter also.

42.

In my considered opinion, the petitioner was entitled to approach the Court in these circumstances on the basis of apprehension about illegalities and irregularities which he claimed to have occurred in the course of the interview process and he cannot be non-suited on the ground that only after his candidature was unsuccessful in the selection process, he chose to challenge the selection process. This is because the results themselves have not been declared.

43.

The other reason given by NTPC is that if interview mode was abandoned and the recruitment criteria changed midstream, it would result in litigation and that it was decided therefore to complete the selection process before 31.12.2015. This reason also does not explain why it was so difficult to withdraw the recruitment

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notification No.2/2015 issued on 15.05.2015 in the light of the instructions received from the Union of India in that regard even by 14.12.2015 followed up by the instructions contained in the office memorandum dt.29.12.2015 and 31.12.2015. In fact, according to NTPC initially its Corporate Office thought of conducting the selection process in January, 2016 and addressed letters to the Union of India that it would conduct only written test in tune with the directions given by the Union of India, but later changed its mind and proceeded with the interview process. But this was done without obtaining any specific permission or clearance from the administrative ministry of the NTPC i.e., the Ministry of Power and also from the Secretary, Department of Personnel and Training, Government of India about the change in their plan from conducting written test as communicated by the NTPC to the Government of India. It in fact, preponed the interview dates to the last week of December, 2015 and went ahead with the interviews.

44.

For all the aforesaid reasons, the decision of NTPC to proceed with the conduct of interview between 26.12.2015 and 31.12.2015 in spite of instructions received from the 1st respondent / Union of India not to conduct interview for non-executive posts like the Junior Mazdoor (W0) grade is arbitrary, illegal and violative of Article 14 of the Constitution of India.

45.

Accordingly, the Writ Petition is allowed and the recruitment process undertaken by the 3rd respondent pursuant to the employment

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notification No.2/2015 dt.15.05.2015 issued by the 7th respondent by conducting oral interview only is declared as illegal, arbitrary and the entire selection process pursuant to the said notification is set aside. The respondent is directed to undertake a fresh selection process strictly in accordance with Office Memorandum F.No. DPE - GM - 01/0001/2015 - GM - FTS - 4857 dt.14.12.2015 of 1st respondent and Office Memorandum No.39020/01/2013-Estt(B)-Part dt.29.12.2015 of the 2nd respondent. No order as to costs.

46.

Consequently, the WVMP.No.3942 of 2016 in WP.No.26043 of 2016, and WVMP.(SR).No.207426 of 2016 in WP.No.26043 of 2016 are dismissed.

47.

As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 14-12-2016 Ndr/*