Central Administrative Tribunal - Delhi
Neelmani Jaiswal vs Union Public Service Commission on 29 March, 2022
1 OA No. 1204/2020
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1204/2020
Reserved On: 10.03.2022
Pronounced on:29.03.2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Neelmani Jaiswal
S/o Rambaboo Chaudhary,
resident of village- Rustampur,
P.O.- Hayaghat, P.S.- Hayaghat,
Distt.- Darbhanga, Bihar-847301. ....Applicant
(By Advocates: Ms. Mannu Singh and Mr. Mukul Sinha)
Versus
1. Union Public Service Commission
through its Secretary,
Dholpur House, Shahjhan Road,
New Delhi-110069
2. Union of India through Secretary,
Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi-110001
3. Under Secretary to the Govt. of India,
Ministry of Labour and Employment,
Govt. of India, Shram Shakti Bhawan,
Rafi Marg, New Delhi-110001
4. Ashwani Kumar Chaturvedi (Roll No. 0003009)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale)
and equivalent posts,
Central Labour Service
2 OA No. 1204/2020
5. Ram Chandra Jakhar(Roll No. 0002130)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
6. Rajnish Sangwan (Roll No. 0007889)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
7. Rajendra Singh Rajpur (Roll No. 0008584)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
8. Ravi Shankar Kumar (Roll No. 0006613)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
9. Sunil Sharma (Roll No. 0006567)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Senior Time Scale) and
equivalent posts, Central Labour Service
10. Sakshi Chugh (Roll No. 0003374)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Senior Time Scale) and
equivalent posts, Central Labour Service
11. Rohit Kumar (Roll No. 0005775)
Son of not known to the appellant
at present working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
12. Dhruv (Roll No. 0002230)
Son of not known to the appellant
at present working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
3 OA No. 1204/2020
13. Hari Prasad Chaurasiya (Roll No. 0007853)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
14. Kulasekaran A (Roll No. 0000405)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
15. Randeep (Roll No. 0005077)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
16. Mukesh Kumar Tiwary (Roll No. 0001101)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
17. Kshitij Sharma (Roll No. 0007657)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
18. Aneish Ravindra (Roll No. 0007271)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
19. Rahul (Roll No. 0008435)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
20. Kumar Amritesh (Roll No. 0003275)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
4 OA No. 1204/2020
21. Swapnil Singh Thakur (Roll No. 0007468)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
22. Sarvesh Kumar (Roll No. 0002295)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
23. Ramesh Kumar(Roll No. 0000176)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
24. Abhinav Tiwari (Roll No. 0007065)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
25. Ravi Ranjan Prasad (Roll No. 0000989)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
26. Parineeta (Roll No. 0000213)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
27. Laxmi Narayan Meena (Roll No. 0000148)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
28. Ajeet Kumar (Roll No. 0005999)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
5 OA No. 1204/2020
29. Raghavendra Nayaka M (Roll No. 0002471)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
30. Ayman Jamal (Roll No. 0007988)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
31. Dinesh Kumar (Roll No. 0003059)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
32. Ramesh M (Roll No. 0004108)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
33. Ashwani Yadav (Roll No. 0001455)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
34. Saravanan (Roll No. 0008486)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
35. Balaji P (Roll No. 0001389)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
36. Pramod Kumar Barua (Roll No. 0005043)
Son of not known to the appellant at present
working as Assistant Labour
6 OA No. 1204/2020
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
37. Prachi Gautam (Roll No. 0006377)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts, Central Labour Service
38. Jayanta Prasad Behera (Roll No. 0006517)
Son of not known to the appellant at present
working as Assistant Labour
Commissioner (Junior Time Scale) and
equivalent posts,
Central Labour Service. ...Respondents
(By Advocates: Mr. R.V. Sinha, Counsel for Respondent No.1,
Mr. Amit Anand, Counsel for Private
Respondent Nos. 4, 6, 7, 8, 9, 10, 13, 16, 17,
18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31,
32, 34, 35, 36, 37 and 38)
ORDER
Hon'ble Mr. Mohd Jamshed, Member (A) This O.A. was originally filed by the applicant before the Central Administrative Tribunal, Patna Bench and listed as O.A. No.50/00444/2019, seeking the following relief(s):-
"(i) To quash the recommendation/
appointments already made vide
Annexure A-8 and A-9 series.
(ii) For a direction to the UPSC to reconduct
the interview of candidates possessing the essential educational qualification with properly constituted interview board in accordance with rule 3 of rules of procedure of UPSC.
(iii) For to direction the UPSC to redraw the merit list of candidates after eliminating such candidates who do not possess the 7 OA No. 1204/2020 essential qualification and on the basis of the marks obtained in the written test and interview conducted by properly constituted interview board.
(iv) For any other relief/reliefs as Your Lordship may deem fit and proper".
2. The Patna Bench of this Tribunal, vide order dated 25.04.2019, dismissed the OA being devoid of merit at the admission stage itself. The order of Central Administrative Tribunal, Patna Bench dated 25.04.2019 was challenged in the Hon'ble High Court of Judicature at Patna in CWJC No.14413/2019. Hon'ble Patna High Court, vide order dated 21.01.2020 has set aside the order of the Tribunal and remanded back the matter for fresh consideration. Subsequently, vide order dated 13.03.2020, Principal Bench of this Tribunal allowed the PT case No.68/2020 to transfer O.A. No.444/2019 from Patna Bench to the Principal Bench. The case was accordingly transferred to Principal Bench, Central Administrative Tribunal and renumbered as O.A. No.1204/2020.
3. Union Public Service Commission (UPSC) issued advertisement No.20/2016 inviting online applications for recruitment to the various posts, including the post of Junior Time Grade of Central Labour Service (Group 'A' Organised Service) for the post of Assistant Labour Commissioner. 33 8 OA No. 1204/2020 vacancies were advertised in this category, which were later on increased to 35. It is submitted by the applicant that the essential qualification as mentioned in the advertisement was:
"(i) Degree of a recognised University;
and
(ii) Diploma in Social Work or Labour Welfare or Industrial Relation or Personal Management or Labour Law from a recognised University or Institution.
Desirable:- Degree in Law.
The applicant possessed requisite qualification of Bachelor of Computer Application (BCA) and a Post Graduate Diploma in Personnel Management & Industrial Relation (PMIR). It is also stated in the advertisement that the Commission may adopt short-listing criteria to restrict the number of candidates to be called for interview on various grounds including the following:-
(a) "On the basis of Desirable Qualifications (DQ) or any one or all of the DQs, if more than one DQ is prescribed."
(b) "On the basis of higher educational qualifications than the minimum prescribed in the advertisement."
(c) "On the basis of higher experience in the relevant field than the minimum prescribed in the advertised in the advertisement."
(d) "By counting experience before or after the acquisition of essential qualifications".9 OA No. 1204/2020
(e) "By holding a Recruitment Test".
4. It was decided by the Commission to hold a Computer Based Recruitment Test (CBRT). The applicant appeared in the written test. The result of the test was published on the website on 04.01.2018 and a total number of 116 candidates qualified in the written test, including the applicant. The applicant was further asked to submit his respective documents with regard to his eligibility. The applicant appeared in the interview on 22.05.2018. The applicant's contention is that he was satisfied with his performance in the interview. However, he was surprised to see that his name did not figure in the list of candidates selected/notified on the website of the UPSC on 27.06.2018. A total of 35 candidates were recommended by the UPSC. All the selected candidates were subsequently issued appointment letters. It is also stated that the minimum qualifying marks in respect of OBC candidates in the interview was 45 marks whereas the applicant had secured 54 marks in the interview. The applicant contends that most of the other selected candidates, i.e., respondent Nos.4 to 38, do not possess the prescribed qualification and are, therefore, ineligible to have been considered for selection. It is also submitted that the applicant had appeared before the Interview Board on 22.05.2018, which was chaired by neither a sitting Member of 10 OA No. 1204/2020 the Commission nor the Chairman. This Board as per applicant, was chaired by a retired Member of the UPSC and, therefore, the composition of the Board was not in accordance with the rules and procedure. The applicant has filed the present O.A. seeking relief(s) including quashing and setting aside of the recommendation/appointments already made, directing the UPSC to re-conduct the interview of candidates possessing the essential educational qualification with properly constituted Interview Board and for directing the UPSC to redraw the merit list of candidates after eliminating such candidates who do not possess the essential qualification and on the basis of the marks obtained in the written test and the interviews be conducted by properly constituted Interview Board.
5. The applicant had earlier filed this OA before the Patna Bench of this Tribunal. In a detailed order, at the admission stage itself on 25.04.2019, the Patna Bench heard the parties, perused the material on record and dismissed the O.A. The operative portion of the order dated 25.04.2019 is as under:-
"8. The aforesaid submission of the applicant is not acceptable. For the reason, it is further noticed in the present case, that after applicant remained unsuccessful, he had submitted his representation dated 28.09.2018 addressed to Secretary, Ministry of Labour and employment, respondent No.3 herein and raised his grievance about non compliance of norms of advertisement. The said representation was forwarded by the office of Respondent No.3 to respondent No.1 & 2 i.e. UPSC as it is recruiting authority with a direction to look 11 OA No. 1204/2020 into the representation of the applicant and in turn the respondent UPSC vide their letter dated 28.11.2018 informed the applicant that all requirement/including the recruitment for advertisement No.20/2016 carried by the Commission and conducted the recruitment process as per established norms and the policies of the Commission. His request for quashing and re-conducting the interview cannot be acceded to. (Annexure-A/14 refers). The copy of the said reply was also forwarded to respondent No.3. We do not find any infirmity in the said decision.
9. It is settled principle of law that when a candidate appears at an examination without objection and participated in the interview without objection and is subsequently found to be not successful, a challenge to the process of the said recruitment is precluded, who consciously takes part in the process of selection cannot, thereafter, turned around and question the method of selection and its outcome. In this context, reference is made to judgment passed by the Hon'ble Apex Court in the case of Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357, Hon'ble Apex Court has observed as under :-
"13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that: (SCC p. 107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724.)"
14. The same view was reiterated in Amlan Jyoti Borooah, (2009) 3 SCC 227, wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful."
12 OA No. 1204/2020
10. In view of the above discussions as also in the light of law laid down by the Hon'ble Apex Court (Supra), the applicant has no vested right to challenge the recommendation/decision of the recruiting authority on being remained unsuccessful in the recruitment process. Even otherwise, we do not find any material on record which can support the bare allegation of the applicant against the respondent UPSC for appointing respondents No.4 to 37. The order relied upon by the counsel for the applicant is not helpful to the applicant in the facts and circumstances of the present case. Thus, we do not find any reason to interfere with the appointment of respondents No.4 to 37. Accordingly, the O.A. is devoid of merit, hence dismissed at admission stage itself. No costs".
6. In the above order, reliance was placed on the judgment passed by the Hon'ble Apex Court in the case of Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357. The primary reasoning was that the applicant has no vested right to challenge the recommendation/decision of the recruiting authority on being remained unsuccessful in the selection process. The Tribunal did not find any merit and dismissed the OA at the admission stage itself. Aggrieved by this order of the Tribunal, the applicant filed a Writ Petition before the Hon'ble High Court of Judicature at Patna in Civil Writ Jurisdiction Case No.14413/2019. The Hon'ble High Court vide order dated 21.01.2020 set aside the order of the Tribunal and remanded back the matter for fresh consideration by this Tribunal. The relevant paras of the order passed by the Hon'ble High Court are as under:-
13 OA No. 1204/2020
"In the present case, the Tribunal has not decided the case on its merit, but on a technical ground on the principle of estoppel, in the manner and principle that a person who has appeared in the examination, he cannot turn round and challenge the selection, but the law is very much settled, though he cannot challenge the advertisement but after result the persons, under wrong premise, have been appointed, certainly, he has a right to challenge the selection on the plea that the persons, who have been selected, do not possess requisite qualification and also the procedure has not been followed as per the terms and conditions of the advertisement.
As the Tribunal has not decided the case on merit, we set aside the order of Tribunal and remand back the matter for fresh consideration, but it is made clear that the Tribunal will decide the case on day to day basis and will not grant any unnecessary adjournment to any party. We further directs that the respondents are not required to give any notice by the Tribunal. They will appear suo motu before the Tribunal within two weeks from today and they will file their respective written statement within two weeks thereafter and they will serve the same upon the learned counsel for the petitioner. We further give liberty to the petitioner, if so like, may file reply to the written statement within two weeks and the Tribunal will complete the hearing and decide the case on its merit on day to day basis and pass the order on merit of the case The Tribunal will decide the matter within two months after commencement of proceeding..."
The Hon'ble High Court set aside the order of the Tribunal stating that the Tribunal has not decided the case on its merit, but on technical ground on the principle of estoppel, in the manner and principle that a person who has appeared in the examination, he cannot turn round and challenge the selection, but the law is very much settled, though he cannot challenge the advertisement but after result the persons, under wrong premise, have been appointed, certainly, he has a right to challenge the selection. Hon'ble High Court remanded the O.A. back to the Tribunal to 14 OA No. 1204/2020 be decided on merits. Subsequently, the O.A. was transferred to the Principal Bench of this Tribunal.
7. All the respondents through their counter replies have opposed the OA. Respondent No.1 has filed the counter affidavit, respondent Nos. 2 and 3 have filed their written statement and arguments. Counter affidavits have also been filed by certain private respondents and written submissions have been filed on behalf of private respondents No.4, 6, 7, 8, 9, 10, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32, 34, 35, 36, 37 and 38. The respondents have opposed the contention of the applicant by submitting that no enforceable right of the applicant has been infringed nor is there any violation of any statutory rule or the policy decision of the Government. Respondent No.1 has further submitted in the counter affidavit as under:-
"5. That in the discharge of their Constitutional obligations, the Commission is vested with the power to devise its autonomous modes of functioning and procedures objectively in a just and equitable manner of which a reasonable classification of various applicants, on the basis of their qualifications and experience, is an integral part. The Commission sets in motion the process of recruitment by advertising the posts, strictly in conformity with the notified Recruitment Rules framed under Article 309 of the Constitution of India and inviting applications. When the number of eligible applicants is substantially more than the number of posts, the Commission restricts the number of candidates to be called for interview, on the basis of a reasonable classification, based on consciously devised objective short listing criteria, one of which is Recruitment Test. Recruitment Test, as a short-listing tool, is adopted when the number of applications is significantly large as compared to the 15 OA No. 1204/2020 number of posts. These powers of the answering Respondent for reasonable classification have been upheld by various judicial authorities including the Hon'ble Supreme Court of India. Placing reliance upon M.P. Public Service Vs. Navnit Kumar Potdar, (1994) 6 SCC 293, the Hon'ble Apex Court in the matter of Union of India v. T. Sundararaman, (1997) 4 SCC 664, held as under:
"The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received, the Commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission v. Navnit Kumar Potdar & Anr. JT (1994) 6 SC 302 this Court has upheld short listing of candidates on some rational and reasonable basis. In that case, for the purpose of short listing, a longer period of experience than the minimum prescribed was used as a criterion by the Union Public Service Commission for calling candidates for an interview. This was upheld by this Court. In the case of Govt. of A.P. vs. P. Dilip Kumar & Anr. JT (1993) 2 SC 138 also this Court said that it is always open to recruiting agency to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the Commission was legitimate. The decision of the Tribunal is, therefore, set aside and the appeal is allowed."
Respondent No.1 has relied upon various other judgments including the Hon'ble Supreme Court ruling in the matter of Ashok Kumar and Another (supra).
8. It is submitted that the Commission had issued advertisement No.20/2016 on 12.11.2016 inviting 16 OA No. 1204/2020 applications for 33 vacancies in Junior Time Scale Grade of Central Labour Service (Group 'A' organised service). The prescribed qualifications were clearly indicated in the advertisement. Through an Addendum approved by the Commission, the number of vacancies were increased to 35. It was also very clearly stipulated that the prescribed essential qualifications were minimum and mere possession of the same does not entitle a candidate to be called for interview. The advertisement also stipulated that in the event the number of applications being large, the Commission will adopt short-listing criteria to restrict the number of candidates to be called for interview to a reasonable number, inter alia, by holding a recruitment test. In response to the advertisement, the Commission received 8702 applications and it was, therefore, decided to conduct the recruitment test to short-list the number of candidates to be called for interview. The recruitment test was conducted on 25.11.2017 and the result of the same was declared on 04.01.2018. A total of 116 candidates were shortlisted, 5 were found not possessing the minimum eligibility condition and, therefore, their candidature was rejected. Remaining 111 candidates were invited for interview including the applicant. It is also submitted in the counter affidavit filed by respondent No.1 that the Commission evolved the following modalities for 17 OA No. 1204/2020 scrutiny of the applications in terms of the conditions stipulated in the Notification namely:-
"i. Any degree from a recognized university/ institution plus Diploma/BA/PG Diploma/MA in Social Work.
ii. Any degree from a recognized
university/institution plus Diploma/BA/PG
Diploma/MA in Labour laws.
iii. Any degree from a recognized university/ institution plus Diploma/BA/PG Diploma/MA in labour Laws with Administrative Law. iv. Any degree from a recognized university/ institution plus Diploma/BA/PG Diploma/ masters in Personnel Management & Industrial Relations.
v. Any degree from a recognized university/
institution plus Diploma in Personnel
Management, Industrial Relations, Labour Laws & Human Resource Development.
vi. Any degree from a recognized university/
institution plus MA (Public Personnel
Management),
vii. Any degree from a recognized university/ institution plus MBA (Personnel Management). vii. Any degree from a recognized university/ institution plus PG Diploma/MBA degree having Labour Laws/lndustrial Relations as subjects. ix. Degree in Law (LLB/BL) having Labour Laws as subject.
x. Any degree from a recognized university/ institution plus Master of Human Resource & Organizational Development having Industrial Relations as Subject.
xi. Any degree from a recognized university/ institution plus MBA having HRM as a subject."18 OA No. 1204/2020
9. It is submitted by the first respondent that the applicant has applied for the post in question as an OBC candidate and challenged the selection of other OBC candidates. However, each of the six OBC candidates have the prescribed minimum eligibility and assertion of the applicant is totally wrong and not based on facts. The respondent No.1 has also clarified various other aspects of the qualification possessed by other selected candidates who have been selected and are listed as private respondents.
10. To the averments made by the applicant about the constitution of Interview Board, it is submitted that in order to meet the exigencies of convening numerous Interview Boards at the same time, the Chairman, UPSC has full authority to nominate a former Member/Chairman of UPSC to preside over the Interview Board. Such Interview Board is referred to by the Commission as a Nominee Interview Board and that the minutes of the Nominee Interview Board have to be approved by the Chairman, UPSC before the recommendations are finally made and, thus, there is no illegality in constitution of the Interview Board in this case.
11. Respondent Nos.2 and 3 have also opposed the O.A. and submitted that UPSC was given the requirement of 33 19 OA No. 1204/2020 vacancies for the post of Assistant Labour Commissioner, which was subsequently increased to 35. The recommendations of the UPSC were subsequently approved by the competent authority in the Ministry and offer of appointments were issued to the recommended candidates who have since joined their working posts.
12. Private respondents too have opposed the OA submitting that the Original Application filed by the applicant is in the nature of Public Interest Litigation (PIL) in as much as the applicant, though belonging to OBC (Reserved) category, is seeking quashing of the entire result including that of the General candidates and, therefore, the OA is not maintainable. It is also specifically mentioned in the Schedule-II of Central Labour Service (Group 'A') Recruitment Rules, 2005 that the qualification(s), as indicated in the Notification, are relaxable at the discretion of the Commission in case of candidates, otherwise well qualified. This aspect has also been clearly mentioned in the Advertisement No.20/2016 seeking online recruitment applications on the website of the UPSC. It was clearly mentioned that in the event of number of applications being large, Commission will adopt short-listing criteria as detailed in the advertisement. It was clearly mentioned that "the candidates should, therefore, mention all his/her qualifications and experience in the 20 OA No. 1204/2020 relevant field over and above the minimum qualifications". It is also submitted that this short-listing criteria clearly prescribes that number can be restricted by any or more of the following methods including, "on the basis of higher qualifications than the minimum prescribed in the advertisement". It is also submitted that all the successful candidates who are also private respondents possess requisite qualification and, in fact, possess higher educational qualifications. It is also pointed out that the applicant himself has qualification which is higher than the qualification prescribed and, therefore, on equal footing as other candidates. Private respondents have also relied upon the following judgments, including the judgment passed by the Hon'ble Supreme Court in the case of Ashok Kumar and Another (supra):-
1. Union of India and others v. S. Vinod Kumar and Others [(2007) 8 SCC 100].
2. Md. Asif Hussain & Ors Vs. The Bihar State Power (Holding) (2010) 15 SCC 596.
3. Pappu Kr. Pankaj & Ors Vs. The State of Bihar & Ors (WP No. 17093 of 2016).
4. Manjit Singh Vs. State of Punjab & Ors. (CWP No. 451/2008).
5. Ms. Julie Devi Vs. Govt. of NCT of Delhi & Ors. (OA No. 701/2016).
6. Mr. Rajesh Kumar & Ors. Vs. Govt. of NCT of Delhi & Ors. (OA No. 2652/2017).21 OA No. 1204/2020
13. Heard Ms. Mannu Singh with Mr. Mukul Sinha, learned counsel for the applicant, Mr. R.V. Sinha, learned counsel for respondent No.1 and Mr. Amit Anand, learned counsel for private respondents No.4, 6 to 10, 13, 16 to 28, 31, 32, 34 to 38, and perused the record including the written submissions.
14. As stated above, this O.A. has seen a few rounds of litigation. Initially, this was dismissed by the Patna Bench of this Tribunal vide order dated 25.04.2019. The Hon'ble High Court of Patna vide order dated 21.01.2020 quashed and set aside the order passed by the Patna Bench and remanded the case to the Tribunal to be decided on merits. Subsequently, the O.A. was transferred to Principal Bench, New Delhi and was heard at length over number of days. Recruitment to the post of Assistant Labour Commissioner (Central), Ministry of Labour and Employment was held by UPSC. The applicant was one of the candidates therein possessing the required qualifications. The Notification was based on the Recruitment Rules, 2015 notified through Gazette dated 23.04.2015. Schedule II of this Rule lays down the essential qualification, experience and age limits for direct recruitment to the post of Junior Time Scale of Central Labour Service (Group 'A' Organised Service). According to this, the following are the requirements:-
22 OA No. 1204/2020
"(i) Degree of a recognised University.
(ii) Diploma in Social Work or Labour Welfare or Industrial Relations or Personnel Management or Labour Laws from a recognized University or Institution Desirable: Degree in Law from a recognized university.
Note: Qualification(s) are relaxable at the discretion of the Commission in case of candidates "otherwise well qualified".
Age limit: Not exceeding 35 years".
15. On 12.11.2016, UPSC issued Advertisement No.20/2016 inviting applications for 33 posts in Junior Time Scale (JTS) Grade of Central Labour Service (Group 'A' Organised Service) consisting of the posts of Assistant Labour Commissioner (Central) and other posts in the Ministry of Labour and Employment. Qualifications, as mentioned in the advertisement, were as under:-
"Essential: Educational:
(i) Degree of a recognised University;
(ii) Diploma in Social Work or Labour Welfare or Industrial Relations or Personnel Management or Labour Law from a recognized University or Institution.
Desirable: Degree in Law from a recognized university".
In this advertisement, the following instructions were also stipulated:-
"3. Minimum Educational Qualifications: All applicants must fulfil essential requirement of the post and other condition stipulated in the 23 OA No. 1204/2020 advertisement. They are advised to satisfy themselves before applying that they possess at least essential qualifications laid down for various posts. No enquiry asking for advice as to eligibility will be entertained.
Note I. The prescribed essential qualifications are the minimum and mere possession of the same does not entitle candidates to be called for interview.
Note II. In the event of number of applications being large, Commission will adopt short listing criteria to restrict the number of candidates to be called for interview to a reasonable number by any or more of the following methods:
(a) "On the basis of Desirable Qualifications (DQ) or any one or all of the DQs, if more than one DQ is prescribed."
(b) "On the basis of higher educational qualifications than the minimum prescribed in the advertisement."
(c) "On the basis of higher experience in the relevant field than the minimum prescribed in the advertised in the advertisement."
(d) "By counting experience before or after the acquisition of essential qualifications".
(e) "By holding a Recruitment Test".
From the above mentioned, it is evident that in the event of number of applications being large, the Commission will adopt short-listing criteria by any or more of the above mentioned methods. This also includes that the short-listing can be done, "on the basis of higher educational qualifications than the minimum prescribed in the advertisement". The contention of the applicant that UPSC had adopted only one of the five conditions mentioned above, i.e. holding a Recruitment Test and not (b) above, which is higher 24 OA No. 1204/2020 educational qualification than the minimum prescribed in the advertisement is mere speculation.
16. It is evident that the advertisement and the conditions stipulated therein were well known to every candidate who applied for this post, including the applicant. Applicant was successful in the written examination and was thereafter called for the interview. In the final list of 35 candidates declared successful, he did not figure as he was not successful. Applicant is apparently not aggrieved by the fact that others have secured higher marks than him but has challenged the selection of most of the other candidates on the basis of his understanding that they were ineligible in terms of their qualifications. He has worked out details of educational qualification of all candidates in his written submission, which is said to be based on their affidavits, and submitted details with regard to their essential educational qualifications. Applicant claims that out of the 35 selected candidates, only 11 possess required essential qualification and the rest were not in possession of essential educational qualifications in terms of the advertisement. During the arguments, it was also mentioned that out of the private respondents, the respondent Nos.5, 6, 10 to 18, 23, 24, 28, 29 and 33 do not hold any Diploma in the subjects, as mentioned in the advertisement, and respondents No.21, 22, 25 OA No. 1204/2020 30, 31, 32, 36, 37 and 38, possess Degree/Diploma in the disciplines, which is neither in the advertisement nor under the rules. The averments made by the applicant are obviously based on his understanding or the lack of it on the laid down eligibility, i.e., degree of a recognised University and Diploma in Social Work or Labour Welfare or Industrial Relations or Personnel Management or Labour Law from a recognized University or Institution. It is evident that the applicant has failed to appreciate the authority of the Commission to adopt short-listing criteria to restrict the number of candidates to be called for interview to a reasonable number by any or more of the five stipulated methods duly mentioned in the advertisement. He has also not challenged the fact that as per Schedule-II of the Recruitment Rules, 2005 of the Central Labour Service (Group 'A') Recruitment Rules, the qualifications are relaxable at the discretion of the Commission in case of candidates otherwise well qualified.
17. It is also seen from the details mentioned in the O.A. that the applicant himself holds a Degree and a Post Graduate Diploma in Personnel Management and Industrial Relations. Strictly going by the arguments made by the learned counsel for the applicant and also the averments in the O.A., the applicant himself does not strictly possess the prescribed qualification, i.e., a Degree and a Diploma in Social 26 OA No. 1204/2020 Work or Labour Welfare or Industrial Relations or Personnel Management or Labour Laws. Diploma and Post Graduate Diploma are not the same. For obtaining a Diploma, the qualification could be only 10+2 and for obtaining a Post Graduate Diploma a person has to be a Graduate. The Notification by the Commission specifically mentions the essential qualification as a Degree and a Diploma. However, they have considered many candidates who possessed higher qualification than the Diploma and, accordingly, the applicant was also considered because of his higher qualification, i.e., 'Post Graduate Diploma' instead of a 'Diploma' in Personnel Management and Industrial Relations. This makes it very obvious that the short-listing criteria has been adopted by the Commission considering the higher educational qualification than the minimum prescribed in the advertisement for various candidates including the applicant and thus the grievance of the applicant of any discrimination is not tenable. It is also a fact that the candidates had to give an undertaking in the Online Recruitment Application for recruitment/selection in the UPSC as under:-
"1. All the candidates including the applicant have given undertaking in the Online Recruitment Application filled for recruitment in UPSC as given below:
I understand that in the event of number of applications being large, commission will adopt Short Listing criteria to restrict the number of candidates to be called for interview to a reasonable number, only 27 OA No. 1204/2020 from amongst eligible candidates by any or more of the following methods:
(a) On the basis of higher qualifications than the minimum prescribed in the advertisement; or
(b) On the basis of higher experience in the relevant field than the minimum prescribed in the advertisement; or
(c) By counting experience before or after the acquisition of essential qualifications; or
(d) By holding a Recruitment Test".
18. As far as the challenge to the Interview Board is concerned, the applicant has submitted that the Selection Board that interviewed him, did not have a Member/Chairman heading that Interview Board. Instead, one retired Member was chairing the Interview Board. This aspect has been clarified by the Commission in their affidavit that in the exigency of holding a large number of selections at the same time, the UPSC which is a Constitutional Body has to constitute Nominee Boards with the approval of the Chairman, which is headed by the retired Member/Chairman, UPSC. The recommendations of these Boards are invariably approved by the sitting Chairman of the Commission. Thus the claim of the applicant questioning the validity of the Interview Board is also not tenable. He has not questioned the Interview Board for any bias or other similar factor.
19. Applicant has relied upon a few decisions in support of his claim, which are as under and have been taken note of:- 28 OA No. 1204/2020
(i) District Collector, Vizianagram Vs. M. Tripur Sundari Devi (1990) 3 SCC.
(ii) Bhanu Pratap Vs. State of Haryana (2011) 15 SCC 304.
(iii) Zahoor Ahmad Vs. Sheikh Imitaz (2019) 2 SCC 404.
(iv) Bedanga Talukdar Vs. Saifudullah Khan (2011) 12 SCC
85.
(v) Sanjay Kumar Dixit Vs. State of Uttar Pradesh (2019) 3 SCALE 671.
(vi) P. Mahendran Vs. State of Karnakata AIR 1990 SC 405. We have gone through the decisions and judgments relied upon by the applicant and found them distinguishable from the facts of the instant case.
20. The respondent No.1 has relied upon the following judgments:-
(i) Maharashtra Public Service Commission Vs. Sandeep Shriram Warade and Others etc. (2019) 6 SCC 362.
(ii) North Delhi Municipal Corporation vs. Kavinder & Others, Civil Appeal No.230/2020.
(iii) State of Gujarat & Others vs. Arvind Kumar Tiwari, (2012) 9 SSC 545
(iv) Pramod Kumar vs. U.P. Sec Education Service Commission, (2008) 7 SCC 153
(v) Ashok Kumar and Another Vs. State of Bihar and Others (2017) 4 SCC 357.
(vi) Ranjan Kumar & Others Vs. State of Bihar and Others, (2014) 16 SCC 187.
(vii) Ekta Shakti Foundation Vs. Govt. of NCT of Delhi (2006) 10 SCC 337.29 OA No. 1204/2020
(viii) Union of India and Another Vs. T. Sundararaman and Others (1997) 4 SCC 664.
(ix) Order/judgment of the Hon'ble Delhi High Court in W.P. (C) No.13150/2018 titled Union Public Service Commission Vs. Mukesh Kumar Suman.
21. Catena of judgments are available with regard to the selection process and the eligibility criteria and are squarely applicable to the facts of this O.A. Some of these are as under:-
1. Hon'ble Supreme Court in the matter of Union of India and others v. S. Vinod Kumar and Others (2007) 8 SCC 100, has held as under:-
"18. It is also well-settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same."
2. Hon'ble Supreme Court in the matter of Md. Asif Hussain & Ors Vs. The Bihar State Power (Holding) (2010) 15 SCC 596 has held as follows:-
"The issue of minimum requisite qualification can be considered from different angles, in the back drop of fact that these days even a candidate from humble background used to acquire qualification of B. Tech. degree through bank assistance if restriction is invoked confining the qualification of Diploma then last segment of society who acquired the qualification of B. Tech. by struggle and toil will go waste by depriving them for participation in recruitment, thereby taking away right, will be of an employment put them in difficult situation to those has to return the loan amount to the bank. So on two counts, it cannot construed that Degree Holder cannot be allowed to participate in the recruitment 30 OA No. 1204/2020 of Junior Engineer as this qualification has not been debarred to participate as well as Power Holding Company has not restricted the qualification of Diploma in Electrical Engineering only, in such view of the matter, the plea of restricting qualification to Diploma cannot be accepted that the candidate having higher qualification has been excluded from participation and only confined to the person who has qualification of Diploma in Electrical Engineering."
3. Hon'ble Patna High Court in this matter of Pappu Kr. Pankaj & Ors Vs. The State of Bihar & Ors (WP No. 17093 of 2016), wherein Shri Neelmani Jaiswal (the Applicant) was the petitioner has given its observation as under:-
"In my opinion, it is the substance of a course which is to be a guiding factor for such consideration even if there may be a variance in the nomenclature of the course but a mere difference in nomenclature, cannot be a foundation nor can form any basis for exclusion of a candidate from consideration rather it is the utility aspect of the matter and whether the course attended by the applicant satisfies the requirement of the post on which this applicants are to be appointed, which normally should be a guiding factor.
I have already indicated at the outset it is the discretion of the employer alone as to the utility of the person concerned based on the qualification possessed by him which has to be the determining factor and in my opinion the authorities of the Corporation need not get swayed by the nomenclature of the qualification so long as the qualification possessed by any candidate satisfies their requirements".
4. Hon'ble High Court of Punjab and Haryana in the matter of Manjit Singh Vs. State of Punjab & Ors. (CWP No. 451/2008) has held as follows:-
"From the facts on record and dictum of above noticed judgments, it emerges that the candidate 31 OA No. 1204/2020 possessing higher qualification in the same line cannot be excluded from consideration for selection. It is a different matter that he/she may not be entitled to any additional weightage for higher qualification, but cannot be denied consideration at par with a candidate possessing minimum prescribed qualification. Denying consideration to a candidate having better and higher qualification in the same line and discipline would definitely result in breach of Articles 14 and 16 of the Constitution of India".
5. Hon'ble CAT, Principal Bench, New Delhi in the matter of Ms. Julie Devi Vs. Govt. of NCT of Delhi & Ors. (OA No. 701/2016) has held as under:-
"4. We have considered the submissions of both sides and the various pronouncements cited by the applicant. We are of the opinion that the respondents were not justified in rejecting the candidature of the applicant. The applicant had higher qualification than the one prescribed in the Recruitment Rules. The qualifications prescribed in the Recruitment Rules should be taken as the minimum requirement and those having higher qualification cannot be treated as ineligible until and unless there is a specific provision in the Recruitment Rules to this effect".
6. Hon'ble CAT, Principal Bench, New Delhi in the matter of Mr. Rajesh Kumar & Ors. Vs. Govt. of NCT of Delhi & Ors. (OA No. 2652/2017) has held as under:-
"9. We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. It cannot be disputed that MCA is a higher degree than BCA which is evident from their very nomenclature. We are not in agreement with the contention of Ms. Sangeet Rai that something more is taught at BCA level which is not taught at MCA level. One has to bear in mind that after acquiring of BCA degree, many students go in for MCA course. We have also perused the judgments relied upon by Ms. Sangita Rai in furtherance of her arguments. First of all, the judgments are not directly relating to the controversy involved and we also find that 32 OA No. 1204/2020 these judgments nowhere put an embargo on consideration of a candidate with higher educational qualification against a post requiring lower educational qualification".
22. It is not the case of the applicant that he secured lesser marks as compared to other candidates in either the written test or interview for any factor which is not attributable to him but to the recruitment agency. He qualified the written test and was called for the interview along with others. In the interview also, he secured more than the minimum eligibility marks identified for OBCs. Not being successful in the selection on the basis of merit, he has chosen to challenge not his own result but the selection of the other candidates who have been successful in the examination held by UPSC by pointing out that they did not possess required qualification and, therefore, most of them were ineligible to be selected. He is, therefore, seeking quashing of the selection process and has also challenged the constitution of the Interview Board. In his challenge to the Interview Board, he claims that the same was not chaired by a sitting Member/Chairman of the UPSC but by someone who happened to be a retired Member. Here also he has not alleged any bias against him in the interview. The relief that he is seeking in this O.A. is akin to that of a PIL as his challenge is to most of the successful candidates' 33 OA No. 1204/2020 selection and quashing of the select list whereas he is himself an OBC candidate and should have challenged only those OBC candidates who have been selected. The names of the six OBC candidates that he has given in the O.A. claiming that they were ineligible and still been selected, is not tenable in view of the details provided by the respondents in their counter reply. We have already dealt with the question of short- listing criteria and the authority of the Commission in this regard. The very fact that the Commission shall adopt a short-listing criteria, in case the number of applications is large, was very specially mentioned in the Notification itself and was known to everyone including the applicant. A detailed procedure was also followed by UPSC in short-listing the candidates for this post, in terms of the criteria that was indicated in the Notification. Higher qualification has been considered against the minimum eligibility qualification. This aspect has been dealt with at length in the Hon'ble Apex Court's judgment in the matter of Union of India v. T. Sundararaman, (1997) 4 SCC 664, which held as under:
"The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received, the Commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission v. Navnit Kumar Potdar & Anr. JT (1994) 6 SC 34 OA No. 1204/2020 302 this Court has upheld short listing of candidates on some rational and reasonable basis. In that case, for the purpose of short listing, a longer period of experience than the minimum prescribed was used as a criterion by the Union Public Service Commission for calling candidates for an interview. This was upheld by this Court. In the case of Govt. of A.P. vs. P. Dilip Kumar & Anr. JT (1993) 2 SC 138 also this Court said that it is always open to recruiting agency to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the Commission was legitimate. The decision of the Tribunal is, therefore, set aside and the appeal is allowed."
23. It is also observed that whereas the applicant has challenged the selection of most of the selected candidates claiming that they were ineligible in terms of the educational qualification wherein the UPSC has considered qualifications in terms of the criteria made. If that is considered for the sake of any logic, the qualification of the applicant himself too becomes questionable as against the minimum qualification of 'Diploma', he himself possesses 'Post Graduate Diploma', which is a higher qualification. This only clarifies and strengthens the averments made by the respondents that the short-listing criteria was adopted carefully and correctly and that all candidates were treated equally. Once all candidates have been treated equally and put on the same pedestal, the very fact that the applicant 35 OA No. 1204/2020 has not been successful in the selection does not give him the right to challenge everyone else's selection on grounds which are absolutely untenable. In catena of above cited judgments, this aspect has been dealt with at length that once the candidate accepts the condition, laid down in the Notification, after not being successful, he cannot challenge the whole selection criteria. The Hon'ble High Court of Judicature at Patna has remanded this case as the same was not decided on merits but on technical grounds on the principle of estoppel by the Patna Bench of this Tribunal. It was specifically mentioned that although he cannot challenge the advertisement, but after the result, the person, under wrong premise, has been appointed, the applicant has a right to challenge the selection on the plea that the persons who have been selected do not possess requisite qualification and the procedure has not been followed.
24. We have specifically looked into these aspects and do not find any infirmity by the Commission in the selection process, short-listing criteria adopted, allocation of marks and the constitution of the Interview Board. A number of judgments of the Hon'ble Apex Court quoted above, squarely 36 OA No. 1204/2020 covers this case. We are of the view that this O. A. is devoid of merits and the same is accordingly dismissed. No costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman Rakesh