Central Administrative Tribunal - Chandigarh
Dr. Harsh Mohan vs Union Of India & Others on 29 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
Date of decision: 29.11.2010
CORAM: HONBLE MRS. SHYAMA DOGRA, MEMBER (J) &
HONBLE MR. KHUSHI RAM, MEMBER (A)
(I) R.A.NO.8/2010 IN O.A.NO.721-CH-2007
Dr. Harsh Mohan
Applicant
Versus
Union of India & Others . Respondents
(II) R.A.NO.9/2010 IN O.A.NO.743-CH-2007
Dr. Kanti Kumar Gombar Applicants
VERSUS
Union of India & Others Respondents
Present : Mr. Balram Gupta, Advocate for the applicant(s).
Mr. H.S. Sethi, Counsel for Respondents No. 1&2.
Mr. Gurminder Singh, Counsel for Respondent no.3.
Mr. B.B.Sharma, Counsel for the Respondent No. 4.
Mr. R.K.Sharma, counsel for Respondent No.5.
O R D E R (oral)
MRS. SHYAMA DOGRA, JM Common questions of facts and law are involved in both these Review Applications and as such both have been heard together and are being disposed of by this common order.
2. In R.A.No. 8/2010, M.A.No.54/2010 and in R.A.No. 9/2010, M.A.No. 55/2010 respectively have also been filed seeking condonation of delay in filing the Review Applications. It is submitted that applicants had no means to know about the documents, Annexures A-2 to A-4 which are letters dated 15.11.2007, 30.11.2007 and 19.2.2008 respectively now placed on record with R.A. whereas the same were within the knowledge of Respondents Nos. 1, 2 and 4. The applicants had no means to know about the same. These came to their knowledge on being handed over by Mr. H.C. Arora, Advocate, under the RTI Act, 2005, on 17.1.2010. On receipt of these documents the R.As have been moved without any further delay.
3. The above letters have been written by the UPSC to the Chandigarh Administration, Chandigarh. It is submitted that UPSC has clearly taken a stand that the Committee constituted by the Chandigarh Administration was illegal as the same had to be constituted by the UPSC and was to be headed by the member of the UPSC. The Chandigarh Administration could not select and appoint a candidate and then ask for ex-post facto concurrence of the Commission. These facts were within the knowledge of the Chandigarh Administration but were not brought to the notice of this Tribunal thus causing prejudice to the claim of the applicants. The UPSC never got the opportunity to consider the case in accordance with Recruitment Rules and as such it did not file its written statement. The UPSC had asked the Chandigarh Administration to forward all applications received by it for appointment to the post of Principal including the application of the applicant Dr. Harsh Mohan in letter dated 19.2.2008.
4. It is pleaded that right to choose the method of appointment and the right to decide whether to consider a particular person for the said post is vested with the UPSC alone. Thus, the selection and appointment of respondent no. 5 stood vitiated. The role of the Administration was only to forward the proposal along with applications and bio-data of the applicants to the UPSC. It was for the UPSC to decide whether a particular person is eligible or not. The UPSC had refused to approve the appointment of respondent no.5 and asked to send a fresh proposal including name of eligible persons. Thus, appointment of respondent no. 5 has not been approved by the UPSC till date and he is continuing illegally. Thus, they have sought review of the order passed by this Court on the ground only on the basis of letters now placed on record.
5. The UPSC has filed a reply to the R.A. though no reply was filed to the Original Application. Chandigarh Administration, Respondent No. 2 has also filed a reply contesting the M.A. as well as R.A. on the ground that applicants have not given reasons as to why the documents in question sought to be relied upon by the applicants now could not be produced by them during the pendency of the O.A or letters written by UPSC during the pendency of this case. There is no ground to condone the delay in filing the R.A. The issue broadly decided by this Tribunal would not have any relevance to the documents relied upon by applicants and the applicants want to re-agitate the entire matter afresh, which is beyond the scope of review. .
6. The Chandigarh Administration, in response to the letter of UPSC had duly informed and clarified to the UPSC vide letter dated 7.5.2008 about the points raised therein that the matter regarding the appointment and procedure adopted by the Chandigarh Administration had already been informed to the UPSC at various stages including that detailed procedure for appointment was not applicable, in view of the fact that the appointment was chosen to be made from an entirely different mode namely deputation. The elaborate procedure enlisted in the Recruitment Rules might relate to appointment made by way of direct recruitment or through promotion but not to the appointment by way of deputation, that too of an incumbent, who by way of his credentials has no competitor in his field of expertise. The Chandigarh Administration has been making similar appointments in the past as well. Thus, it followed a valid and reasonable method of recruitment by way of deputation.
7. It is further submitted by learned counsel for the respondents that the appointment of Respondent no. 5 was not under challenge in the Original Applications. The insistence of UPSC to forward applications of the Applicants was misplaced as they were not at all eligible to be appointed through deputation. The points raised by UPSC stood clarified. The applicants are trying to make out a new case which is not permissible. There is no error apparent on the face of the record.
8. We have heard learned counsel for the parties at length and perused the material on the file.
9. In so far as R.A. No. 8/2010 filed by Dr. Harsh Mohan is concerned, we notice that the O.A. filed by him was dismissed, inter-alia, on the ground that he had no locus standi to challenge the selection and appointment of Respondent no. 5 and he is not an aggrieved person in terms of Section 19 (1) of the A.T. Act, 1985 and in any case selection and appointment of respondent no. 5 was never under challenge in the Original Application. For the same reason, the R.A as well as M.A. filed by him are also dismissed.
10. In so far as Review Application filed by applicants Dr. Kanti Kumar Gumber & Others is concerned, their O.A. was dismissed holding that applicants had applied for the post but did not challenge the process of selection on deputation and when the post was advertised, in 2007, even then they raised no objection It is only when Respondent No. 5 was selected, they challenged the vires of the rules and schedule and such attitude cannot be appreciated. After discussing the matter in detail a finding has been recorded that the selection and appointment of respondent no. 5 was in order and that the applicants had not chosen to challenge appointment of respondent no. 5 which was further extended during pendency of the O.A. Even though there is no ground made out for condonation of delay in filing the Review Application, yet as a matter of indulgence, the M.A. is allowed and delay in filing the R.A. is condoned.
11. It is not in dispute that despite the UPSC having been given notice and counsel on its behalf had appeared, no reply was filed to contest the Original Application. Now UPSC has filed reply to the Review Application. Issuance of letters relied upon by the applicants is not denied. Nothing more has been mentioned by them except that even at present the proposal for filling up the post of Principal GMCH, Chandigarh, is deficient for want of documents in regard to nine candidates who have applied for the post of Principal, GMCH, Chandigarh. From Annexure R-1 dated 7.5.2008, it is apparent that the Administration had sent information to the UPSC in reply to their letter dated 19.2.2008 on various aspects and these letters were issued during the pendency of the O.A. which was decided on 10.12.2009. The applicants or UPSC has not given any cogent reasons as to why these letters were not placed on record earlier in the case and what is the effect of these letters now as the orders already passed.
12. It is not in dispute that the applicants were not eligible to be appointed on deputation basis and as such their claim was rejected by Chandigarh Administration itself whereas the UPSC insisted to send their applications. It was also informed that the Rules had been duly notified. The bio-data of the eligible candidates were sent to the UPSC but those of ineligible persons were not sent earlier. However, subsequently the same were also sent. It was clarified on the role of UPSC in the selection process that as per the Recruitment Rules for the post of Principal, GMCH, in consultation with the UPSC is required and the Administration has kept the UPSC informed at various stages. The question that arises is as to whether the UPSC is the final authority to decide as to which candidate is to be selected and in what manner. The Rules are very clear that the consultation with the UPSC is necessary. What does consultation with UPSC means is the question remains to be answered in this case. This issue is no longer res-integra and stands clinched in a number of cases. In the case of A.N. D'Silva v. Union of India, AIR 1962 SC 1130, the provisions of Article 320(3) came to be interpreted and it was held that consultation of UPSC does not mean that it acts as appellate authority over the Inquiry Officer. In the said decision, it was also observed that the President is not bound by the advice of the Commission. To the same effect is the decision in the case of Union of India and Ors v. Dr. (Mrs.) S.B. Kohli and Anr., 1973(3) SCC 592 : 1973 SLJ 226 (SC). In Dr. H. Mukherjee v. Union of India and Ors. AIR 1994 SC 495 again the scope of Article 323 of the Constitution of India was considered with reference to the earlier decision in the case of Jatinder Kumar v. The State of Punjab, AIR 1984 SC 1850. The recommendations of the Commission were not accepted by the Government of India in view of certain subsequent developments. The question before the Apex Court was whether ACC (Appointments Cabinet Committee) was justified in taking into consideration the subsequent developments for by-passing the recommendations of the UPSC. It was held that there is nothing in Article 323 to suggest that the Government cannot take into consideration the developments subsequent to the selection made by the UPSC. Such a view would not be in public interest and may lead to serious complications if the Government is enjoined to make the appointment notwithstanding certain serious matters having come to its notice subsequent to the recommendation made by the Commission. All that Article 323 requires is that the reasons have to be communicated to the Legislature if the advice of the Commission has not been accepted while placing a copy of the report as to the work done by the Commission. The Apex Court in the case of Dr. P.K. Jaiswal v. Ms. Debi Mukerjee and Ors, AIR 1992 SC 749, a recommendation made to the UPSC by the Government for selection of candidate for a post was subsequently with-drawn before the post was advertised by the Commission on the ground that amendment of the Recruitment Rules for providing promotion to the post was under consideration. The Commission proceeded with the selection process. It was held that Commission cannot insist on going ahead with the selection and the candidate who was called for interview by the Commission does not have a vested right and that after the with-drawl of the recommendation for making the selection, the exercise undertaken by the Commission was not only futile but waste of public time and money besides hardship to candidates who seek appointment. This Tribunal after considering the above decisions has held in 2004 (1) SLJ 54 CAT, Satyendra Jeet Singh, Addl. Commissioner vs Union Of India (Uoi) And Anr. Decided on 7/4/2003, as under :
12. Turning to the core question, we may sound a note of caution that the relationship of Government of India and that of UPSC is not that of master and servant. The latter owes its worth and existence to the constitutional provisions contained in Chapter II of Part XIV of Constitution of India. The UPSC has come into being pursuant to the provisions of Article 315. The founding fathers of the Indian Constitution realized that the democratic system could be maintained only if the civil servants were appointed solely on the basis of merit, by open competition and only if they could carry on the administration independently, instead of blindly carrying out the orders of their political superiors. They have rightly rejected the 'spoils system', under which the administration is carried on by civil servants appointed in consideration of their political service to the party in power. With this avowed object in view, the Constitution gave birth to a Public Service Commission at the Union as well as the State level. It was supposed to be an autonomous body so that it could carry on its functions independently, fairly and impartially through the agency of men of high integrity, knowledge and qualification. The aim and object to constitute Public Service Commission is to ensure recruitment/selection to the civil services on the basis of merits by an impartial body. Clause (3) of Article 320 of the Constitution enjoins that the PSC shall be consulted: (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions etc.; (c) on all disciplinary matters affecting a person serving under the Government of India in a civil capacity, including memorials or petitions relating to such matters. There are other matters in which Commission has to be consulted. It is true that the law as settled by the Apex Court is that the words 'shall be consulted' are not to be construed in the sense that in default of consultation, the action of Government under any of the Sub-clauses of Clause (3) of Article 320 would be null and void. Nevertheless where the Government does not accept the recommendation of the Commission, say, as to selection of the candidate, it is the duty of the Government to place the reasons for its non-acceptance before the appropriate Legislature, but it has no obligation to communicate such reasons to the Commission or to the candidate concerned. Inspite of the non-compulsive nature of the advice or the recommendation tendered by the UPSC, this constitutional body cannot be rendered superfluous. If any vacancy is to be filled, the Government must make the appointment in the order of merit fixed by the Commission. So also, the Government cannot appoint a person whose name does not appear in the list, though it is open to the Government to decide how many appointments it will make. When one says that the advice/ recommendations of the UPSC is not binding or may not be accepted by the Government, it does not amount to saying that it is open to the executive Government, completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made under the proviso to Article 320, they are meant to be followed in letter and spirit and it goes without saying that consultation with the Commission in all the matters detailed in Clause (3) of Article 320 has been specifically provided for, in order, firstly, to give an assurance to the services that a wholly independent body not directly concerned with the making of orders adversely affecting public servant, has considered the action proposed to be taken against a particular public servant, with an open mind and secondly, to afford the Government unbiased advise and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the executive government, when it proposes to take any disciplinary action against the public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirement of the situation. Similarly, public faith and confidence is doubly assured if the recruitment/selection of the candidates is made by a body which is independent impartial and fair. Therefore, the element of 'consultation' cannot totally be ignored in the matters of public service. All things remaining the same, the Government is bound to accept the selection made by the Commission N.T. Bevin Katta etc. v. Karnataka Public Service Commissioner and Ors., AIR. 1990 SC 1233, or to accept the advice tendered by the Commission. The Government is duty bound to consult the Commission and, therefore, the advice given by the Commission cannot be lightly brushed aside. The Government is bound to give effect to the advice of Constitution State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912. Ours is a constitutional system of checks and balances. The advice tendered by a constitutional authority cannot normally be ignored or rendered Otiose by another constitutional functionary. Mutual respect of each one of the constitutional functionaries is the signature tune of our constitutional scheme.
13. A perusal of the observations made by this Tribunal in regard to concept of consultation with UPSC would make it clear that power of the Government as well as UPSC is distinct and independent of each other and both act with mutual respect for each other. In this case we find that the respondents have consulted from time to time the UPSC before making appointment and selection as per rules. A very fine line of distinction can be drawn amongst the words consultation, recommendation and approval. In the present case word consultation is used in the relevant rules which provided that while making appointment of Principal, the consultation with the UPSC is necessary. Here the submissions of the learned counsel for the applicant does not hold water when it is argued that it was the UPSC who was to make the selection of the candidates. In our considered opinion, had it been the intention of the legislature the term d recommendation or approval would have been used in the rules. Here consultation means to consult the UPSC from time to time to keep it informed about the process to be followed by the Respondents to make appointment or the post in question. The UPSC has to simply keep a watch and to advice as to which rule are being followed when such process of selection is made or not. The term approval means, seeking concurrence from the UPSC after making selection by the concerned department.
14. In any case the issue of selection and appointment of the respondent no. 5 stands settled by a reasoned and speaking order and this Tribunal has taken a possible view and if the applicants have any grievance against the same, they can challenge the same before the competent court of law as per law. We find that there is no ground, whatsoever, made out for review of the order in question on the ground now taken by the applicants. The applicants are basically trying to re-argue the case all over again. The pleas taken by them otherwise also do not fall within the limited scope of review under Order 47, Rule 1 of the Code of Civil Procedure, 1908 read with the provisions of Section 22(3) (f) of the Administrative Tribunals Act, 1985 and as such no review of the order in question is called for. They have failed to make out any point which may convince us to take a different view than the one already taken by us in the given facts and circumstances of the case. No other point was raised by the applicant except the point as discussed in preceding paras
15. Therefore, for these reasons recorded here-n-above, both the Review Applications are dismissed with no order as to costs.
(KHUSHI RAM ) (MS.SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
Place: Chandigarh.
Dated: 29.11.2010
HC*
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