Himachal Pradesh High Court
Gaurav Mahajan vs Union Of India & Others on 6 January, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Writ Petition No. 10466 of 2012
Judgment Reserved on 3rd January, 2020
Date of Decision 6th January, 2020
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Gaurav Mahajan ...Petitioner
Versus
Union of India & others
r .... Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting? Yes ______________________________________________________________ For the Petitioner: Mr.B.C. Negi, Sr. Advocate with Mr.Nitin Thakur, Advocate.
For the Respondents: Mr.Rajesh Sharma, Assistant Solicitor General of India.
Vivek Singh Thakur, J.
In the present petition, challenge has been made to decision of canceling of recruitment process undertaken by the respondents to the post of Computer Programmer in Cantonment Board Dalhousie, District Chamba H.P. conveyed vide communication dated 15.10.2012 (Annexure P-6 colly) directed to Chief Executive Officer of Dalhousie Whether Reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 2Cantonment by Director Defence Estates, Western Command.
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2 Petitioner is amongst 27 candidates, who had applied to the post in response to advertisement issued by the Chief Executive Officer, Dalhousie Cantonment published in newspapers, i.e. Employment News, Punjab Kesari and Amar Uzala (Annexure P-1 Colly).
3 Out of 27 candidates only 19 had appeared in the written test, wherefrom on the performance in the written test three candidates, including the petitioner, were shortlisted for personal interview conducted on 3 rd October, 2011. Maximum age limit, prescribed for appointment to the post, was 25 years whereas, all shortlisted candidates were over aged.
4 The Selection Committee on the basis of performance in the written test and interview had recommended the name of petitioner to be appointed against the post advertised with further request to sanction necessary age relaxation of 04 years 02 months and 29 days for his appointment to the post.
::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 35 Chief Executive Officer had transmitted the recommendations to concerned authority vide letter dated .
5th October, 2011 (Annexure P-3) with request for sanction of age relaxation for appointment of the petitioner.
6 It is the case of petitioner that when no communication was received from the respondents, he had represented to the respondents for issuance of joining letter vide communication dated 17.2.2012 (Annexure P-4) and reminder thereof dated 4.9.2012 (Annexure P-5) and for receiving no response thereto, he had sought information under Right to Information Act, whereupon copy of letter dated 15.10.2012 (Annexure P-6), whereby recruitment to the post was directed to be cancelled by Director Defence Estates, was supplied to him with forwarding letter dated 24.11.2012 and thereafter, present petition has been preferred.
7 Impugned cancellation of recruitment process has been assailed on the ground that reasons assigned for cancellation suffer from non-application of mind, unreasonableness and arbitrariness. It is canvassed that first ground for cancellation, as stated in communication ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 4 15.10.2012, is that rejection of application of Varsha Rathour on the ground of not attaching experience .
certificate was procedurally incorrect, whereas in advertisement Annexure P-1 Colly, it has been specifically mentioned that candidate shall enclose all attested copies of certificates viz. date of birth, caste/OBC certificate, qualification etc. with further condition that incomplete applications are liable to be rejected and in Hindi newspaper also, same has been reiterated in Hindi and Varsha Rathour had failed for attaching her experience certificate along with application and thus her name was rightly rejected and further that candidature of Varsha Rathour was not rejected solely on the ground of being overage, but she had failed to attach her experience certificate for claiming the age relaxation and whereas, three candidates shortlisted for selection had attached their experience certificate with applications and therefore, on this ground, cancellation of recruitment process is bad in law as candidature of Varsha was rightly rejected for filing incomplete application in response to the advertisement.
::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 58 It is also contended that second ground for cancellation of recruitment process, i.e. inviting of .
applications on plain paper instead of prescribed form, cannot be termed as an illegality so as to quash the entire selection process.
9 Last reason assigned for cancellation of recruitment process vide communication dated 15.10.2012 has also been objected on the ground that the same Selection Committee had also conducted selection process for the same post in other Cantonment Boards during the same year, but except in the present case, i.e. case of Cantonment Board, Dalhousie, the selection process has not been cancelled at any other place despite the fact that the Selection Committee had adopted the identical process in all places.
10 On behalf of respondents, it is contended that General Officer Commanding-in-Chief of the Command is competent authority either to reject or sanction the appointment of overage candidates and selection of Computer Programmer recommending the name of petitioner, was not of a candidate normally eligible under ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 6 Rules, but subject to sanction of relaxation in age limit and therefore, it was beyond administrative power of Chief .
Executive Officer to appoint him and petitioner had no legal right to the appointment only for recommendation for his selection by the Board as the competent authority had right to reject or approve the selection of an overage candidate.
11 It is further contended on behalf of respondents that illegality like rejection of candidature of Varsha Rathour, an applicant, was not committed by the Selection Committee in other Cantonment Boards and as such, the process in those Cantonment Boards does not suffer from the same irregularity/illegality and, therefore, question of quashing of appointment or recruitment process in those Cantonment Boards does not arise at all and present case is the first case where selection process has been quashed.
12 Referring judgment of Apex Court in Bejgam Veeranna Venkata Narasimloo and others vs. State of AP and others reported in (1998)1 SCC 563 it has been contended that respondent cannot be permitted to take the plea of irregularity on the basis of its own advertisement and to cancel the recruitment process for not inviting the ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 7 applications on a format but on plain paper only and also for lapse, if any, in the advertisement published on their behalf .
and once applications have been invited on plain paper with details of certificates to be attached with application by using word 'etc', it was mandatory for the candidates to apply by filing an application complete in all respects including attaching the copies of all certificates therewith and now, it is not open to the respondents to say that recruitment process is liable to be cancelled for not inviting the applications on the prescribed format but on the plain papers only.
13 The Apex Court in Charles K. Skaria and others vs. Dr.C.Mathew and others reported in (1980)2 SCC 752 has held that having the prescribed eligibility like diploma must be obtained at least on or before the last date of application and not later and proof of having acquired such qualification is different from the factum of having got it. The primary question is as to whether candidate, in fact, has secured the qualification before the final date of application, whereas, to produce the evidence thereof along with the application is secondary and relaxation of date with ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 8 respect to first i.e. acquiring qualification is illegal, but not to the second i.e. relaxation of date to produce document of .
qualification, and academic excellence, through such qualification, cannot be denuded only because proof is produced later, yet before the date of actual selection as the emphasis is on the qualification and the proof thereof sub-serves the factum of possession of such qualification and is not an independent factor. It is further held that essential is the possession of qualification before the given date, what is ancillary is the safe mode of proof of such qualification and therefore, to make mandatory, the date of acquiring the qualification before the last date for application makes sense, but, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.
14 The same principle has been reiterated by the Apex Court in Dheerender Singh Paliwal vs. Union Public Service Commission reported in (2017)11 SCC ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 9 276 observing that for furnishing particulars by appellant in response to advertisement and production of the degree .
certificate for having secured the prescribed qualification at a later point of time, there was substantial compliance with the requirement to be fulfilled in the matter of essential qualification possessed by the appellant.
15 Applying the ratio of aforesaid judgments in the present case, I find merit in the first reason assigned to take decision for cancellation of recruitment process communicated vide letter dated 15.10.2012 for rejection of candidature of Varsha Rathour for not attaching the experience certificate particularly in a case when all three candidates finally shortlisted for selection are also overage candidates.
16 Inviting the applications on plain papers but not on the prescribed format may not be a justifiable reason for cancelling the recruitment process and also preparation of question papers, evaluation of answer sheets and viva-voce by same persons, who are well aware about performance of candidates in the written test, in absence of malafide, may ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 10 also not be a patent illegality or material irregularity in all cases, so as to cancel the recruitment process.
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17 It is also matter of fact that petitioner was over aged on the relevant date and his selection was subject to sanction of age relaxation and it is also settled that relaxation of age for appointment cannot be claimed as a matter of right.
18 Case of the petitioner was yet to be considered, on the basis of his experience, for necessary sanction of age relaxation for his appointment to the post and therefore, prior to such sanction, he, as a matter of right, is not competent to seek appointment letter and/or claiming joining against the post in question and his right to be considered for sanction of age relaxation has lost its force when it was found that candidature of similar situated candidate Varsha Rathour has been rejected for not attaching the experience certificate and it has been found to be procedurally incorrect. In the light of ratio laid down by the Apex Court in Charles K. Skaria's case and Dheerender Singh Paliwal's case (referred supra), ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 11 impugned cancellation of recruitment process does not warrant interference.
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19 It is settled law that a selected person does not acquire indefeasible right for inclusion of his name in the selection list against the post advertised and employer has a right to take a decision to fill or not to fill the post, however, subject to the conditions that decision taken not to fill the post must not be arbitrary, malafide or with ulterior motive and in case decision not to fill the post is taken for bonafide, just and valid reasons, the selected candidate is not entitled to agitate the same, as discussed supra.
20 In present case, though name of petitioner, has been recommended for appointment but the recruitment process has not been finalized yet as recommendation of his name was subject to sanction of age relaxation by the competent authority. Even otherwise, the competent authority has decided not to complete the process and fill the post for valid reasons, as discussed supra. Therefore, petitioner has no right to seek mandamus for completion of ::: Downloaded on - 07/01/2020 20:25:49 :::HCHP 12 recruitment process and finalizing the selection process in his favour.
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21 In view of aforesaid reasons, petition is dismissed being devoid of any merit, so also pending miscellaneous application(s), if any.
January 06, 2020 (Vivek Singh Thakur)
(ms) Judge
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