Delhi High Court
Union Of India vs Manjesh Porwal And Ors on 22 September, 2023
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Manmeet Pritam Singh Arora
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: September 22, 2023
+ W.P.(C) 12475/2023 & CM APPL. 49183/2023
UNION OF INDIA ..... Petitioner
Through: Mr.Nitinjay Chaudhary, Sr.Panel
Counsel with Ms.Vidhi Gupta, G.P.
and Mr.Rahul Maurya, Advocate.
versus
MANJESH PORWAL AND ORS. ..... Respondents
Through: Mr.Tushar Ranjan Mohanty, Ms.Payal
Mohanty, Ms.Soumya Punna and
Mr.Milind Jain, Advocates.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
V. KAMESWAR RAO (ORAL)
CM APPL. 49184/2023
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 12475/2023 & CM APPL. 49183/2023
3. This writ petition has been filed by the petitioner/UOI challenging the
order dated January 27, 2021 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi ('Tribunal', for short) in O.A. No.769/2020
whereby the Tribunal has allowed the OA filed by the respondents herein by
stating in paragraph Nos.9 to 13 as under:
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W.P.(C) 12475/2023 Page 1 of 6
Digitally Signed By:ASHEESH
KUMAR YADAV
Signing Date:26.09.2023
16:02:14
"9. We have thoroughly verified the advertisement as well as
the relevant Recruitment Rules. There is no stipulation that a
written test would be conducted as part of the selection process.
For example, in case of Civil Services Examination, the written
tests are held at two stages, namely, the preliminary and main.
There is no stipulation of that nature for the post of Assistant
Director (Cost). The test, which was held in respect of the
applicant, was part of the short listing criteria. It is fairly well
known that the UPSC reserves to itself, the right to take
recourse to short listing criteria. This may include the one of
taking into account, the higher qualifications or experience or
conducting a written test. All this is only for the purpose of
short listing.
10. For example, if the available posts are 5 and about 300
applications are received from candidates, who hold the
prescribed qualifications. When no written test is prescribed for
selection, it would be difficult for the selecting agency to
interview all the eligible candidates. In such cases, the recourse
can be taken to any of the short listing criteria. For instance, if
the prescribed qualification is Post Graduation in a particular
discipline, the possession of Ph.D can be taken into
consideration. Similarly, if the prescribed experience is 3 years,
the length of experience can be enhanced to 5 or 8 years.
Another method is to conduct the test, for the exclusive purpose
of short listing the candidates and not for assessing their merit
in relation to the post in question. Time and again, the Courts
have conceded this facility to the UPSC whenever the measures
were challenged as constituting alteration of the qualifications
or the selection process.
11. Once the online test was conducted only for the purpose of
short listing the candidates and the marks obtained therein did
not constitute the basis for assessing the relative merit, it cannot
be said that the selection of the applicants was on the basis of a
written test. A subtle distinction needs to be maintained between
two situations. The first is where a written test is conducted as
part of selection process. If it is followed by interview, the merit
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W.P.(C) 12475/2023 Page 2 of 6
Digitally Signed By:ASHEESH
KUMAR YADAV
Signing Date:26.09.2023
16:02:14
of the candidates is decided on the basis of the aggregate of
marks secured in the written test and interview. The second
situation is where the written test is conducted as a measure of
short listing criteria. In such cases, once the performance of the
candidates is taken as the basis for short listing, the relevance
of the examination, and equally, the marks secured therein,
disappears. Those, who are shortlisted, would be subjected to
interview. The marks, which were secured by them in the
examination conducted for short listing, do not figure anywhere
in the final selection process. In the instant case, the second
process was adopted.
12. Another aspect is that if the written test is conducted as part
of selection process, it is conducted irrespective of the number
of applications, that are received. Conversely, in a given
recruitment year, if the number of applications is almost
proportionate to the number of vacancies, the necessity to
conduct any written test for the purpose of short listing, may not
arise. As observed earlier, no written test is prescribed as part
of selection process for the post of Assistant Director (Cost). It
was incidental that online test was conducted in the year 2014,
exclusively for the purpose of short listing.
13. We find that the subtle distinction, referred to above, was
not taken into account by the respondents. The impugned O.M.
cannot be sustained in law. Further, the respondents did not
issue any notice to the applicants before passing the impugned
O.M."
4. Issue which arose for consideration before the Tribunal was that the
respondents who were working in various Public Sector Undertakings were
appointed to the Indian Cost Accounts Service ('ICAS', in short) pursuant to
an advertisement issued by UPSC for the post of Assistant Director (Cost).
The selection process included a written examination and interview. The
respondents sought 'pay protection' on their appointment in ICAS. The same
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W.P.(C) 12475/2023 Page 3 of 6
Digitally Signed By:ASHEESH
KUMAR YADAV
Signing Date:26.09.2023
16:02:14
was denied to them, which resulted in the filing of the Original Application.
The case of the petitioner before the Tribunal was that, the 'pay protection' is
granted only to those employees who have been recruited through the
process of interview only and not through the process of written examination
and interview, the Tribunal negated the said stand of the petitioner by stating
in paragraphs No.9 to 13, which have already been reproduced above. In
fact, Mr.Tushar Ranjan Mohanty, Advocate appearing for the respondents
states that the issue is no res-integra, as this Court in Sanjog Kapoor v.
Union of India & Ors., W.P.(C) No.5518/2004 decided on April 20, 2007
has settled the issue. The judgment has been followed in Nagender Kumar
Jha v. Union of India & Ors., W.P.(C) No.8660/2005 decided on January
06, 2016 and also in Union of India & Anr. v. Abhay Kumar, W.P.(C)
No.3338/2022 decided on February 23, 2022, wherein the courts have
categorically held in favour of the Officers in those cases. In this regard, we
may reproduce the relevant paragraphs of the latest judgment of this Court in
Union of India & Anr. v. Abhay Kumar (supra) as under:
"3.3. We may note that the aforementioned judgment delivered by the
Division Bench of this court in Sanjog Kapoor case, was followed by
another Division Bench judgment of this court in Nagendra Kumar
Jha v. Union of India & Anr. This judgment is dated 06.01.2016 and
the matter was registered as W.P.(C.) No.8660/2005.
3.4. Mr Singh, however, relies upon a later circular dated 12.02.2001
to press his submission that the respondent cannot be accorded pay
protection as he was selected through an open competitive
examination. Mr. Singh contends that only, if the respondent had been
recruited through an interview--would pay protection be accorded to
him having moved from one public sector undertaking to another
instrumentality of the state.
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W.P.(C) 12475/2023 Page 4 of 6
Digitally Signed By:ASHEESH
KUMAR YADAV
Signing Date:26.09.2023
16:02:14
3.5. A careful perusal of the circular dated 12.02.2001, issued by the
Government of India, Ministry of Railways (Railway Board), would
show that it is founded on the aforementioned O.M. i.e., O.M. dated
10.07.1998.
3.6. As noticed above, two Division Benches of this court have
rendered a view concerning the DoPT's O.M. dated 10.07.1998.
Therefore, the submission advanced by Mr. Singh that the pay
protection could have been accorded to the respondent only if he had
been selected [i.e., had been recruited through an interview] cannot be
accepted.
3.7. We may also note that it is Mr. Singh's submission that the
circular dated 10.07.1998 does not apply to the Central Government.
3.7(a) We are unable to appreciate this submission for the reason that
what the petitioners needed to follow was the ratio of the Division
Bench judgments adverted to hereinabove. The judgments,
unreservedly, hold that the distinction drawn for according pay
protection to employees based on the manner of recruitment was both
arbitrary and unfair. Therefore, this submission does not impress us.
4. Before we conclude, we may express our concern that the
departments continue to file petitions and drag employees to court,
even when there are rulings rendered by Court with regard to the
issue at hand.
4.1. In this case, as noticed hereinabove, there were two judgments of
two Division Benches concerning the DoPT's O.M. dated 10.07.1998.
Therefore, the circular dated 12.02.2001 could not have furthered the
cause of the petitioners and yet a petition was filed.
4.2. This is an aspect which the legal advisors of the petitioners should
have taken into account before seeking to drag the respondent into the
litigation arena.
4.3. We would have imposed heavy costs on the petitioners had the
respondent joined the proceedings.
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W.P.(C) 12475/2023 Page 5 of 6
Digitally Signed By:ASHEESH
KUMAR YADAV
Signing Date:26.09.2023
16:02:14
5. Mr. Singh would do well to place the judgment passed by us today
before the officer who was concerned with sanctioning the institution
of the present writ petition."
5. Additionally, it is submitted by Mr. Chaudhary, that in the year 2022,
the DoP&T had issued an Office Memorandum dated September 14, 2022,
removing the distinction between an appointment made through interview or
open competitive examination or combination of both for the purpose of pay
protection.
6. If that be so, in view of the settled position of law which has also been
accepted by petitioner herein by issuing the OM dated September 14, 2022,
we find no reason to interfere with the order of the Tribunal. It is a fit case
where cost should be imposed, however we refrain from doing so.
7. We expect that the petitioner shall circulate a copy of this order to all
the Ministries for their information.
V. KAMESWAR RAO, J.
MANMEET PRITAM SINGH ARORA, J. SEPTEMBER 22, 2023/v Signature Not Verified W.P.(C) 12475/2023 Page 6 of 6 Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:26.09.2023 16:02:14