Central Administrative Tribunal - Delhi
Dharamveer Kapoor vs Gnct Of Delhi on 25 March, 2014
Central Administrative Tribunal
Principal Bench
O.A. No.1000/2014
Order reserved on: 21.03.2014
Order pronounced on: 25.03.2014
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. V. Ajay Kumar, Member (J)
Dharamveer Kapoor
s/o Shri Chittranjan Kapoor
r/o House No. 249, B-5,
Top Floor, Sector-7, Rohini,
Delhi-110085. -Applicant
(By Advocate: Shri Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through its Chief Secretary
Delhi Secretariat, Players Building,
IP Estate, New Delhi-2.
2. Delhi Subordinate Services Selection Board
Through its Chairman
F-18, Karkardooma Institutional Area,
New Delhi.
3. Suneet Kumar
In representative capacity
Service to him through Chairman
Delhi Subordinate Services Selection Board
F-18, Karkardooma Institutional Area,
New Delhi. -Respondents
O R D E R
Per Mr. Sudhir Kumar, Member (A):
Heard the learned counsel for the applicant on the point of issuance of notice, and on the prayer for Ex-Parte grant of Interim Relief.
2. The facts of this case lie in a very narrow compass. The respondents had issued Vacancy Notice Advertisement No.2/13 dated 25.06.2013 advertising for several posts, including the post of Sr. Scientific Assistant (Biology) Post Code 29/13, for three vacancies, two for Un-reserved and one for OBC. Since this OA concerns only the vacancy at Post Code No.29/13, we may reproduce the relevant portion of the Advertisement as below:-
Post Code: 29/13 SR. SCIENTIFIC ASSISTANT (BIOLOGY)
In FORENSIC SCIENCE LABORATORY
No. of Vacancies: 03 (UR-02, OBC-01)
Essential Qualification: Masters degree in Zoology or Botany or Anthropology or Human Biology or Biochemistry or Microbiology or Genetics or Biotechnology or Molecular Biology or Forensic Science with Zoology or Botany or Forensic Science as one of the subject at B.Sc. level from a recognized University. Desirable: Doctorate degree in concerned discipline from a recognized University or equivalent Experience Essential: 2 years experience in analytical methods/research therein in the relevant field.
Pay Scale: Rs 9300-34800 + Grade pay 4200/-
Age Limit: Not exceeding 30 Years (age relaxation will be given as per note regarding age relaxation).
This post is not identified suitable for PH persons as per the requisition of the User Department.
3. In Part-2 Mode of Selection of the same advertisement, at Paragraphs 5,7 & 10, the following had been mentioned:-
MODE OF SELECTION: The selection shall be made through One Tier examination scheme and Physical Endurance Test wherever applicable as given below:
* Examination Scheme (Post code 24/13 to 38/13) DSSSB will conduct One Tier Examination as per examination scheme given in Annexure.
One Tier Examinations (T): For post codes 24/13 to 35/13.
One Tier Examinations (G): For post codes 36/13,37/13 & 38/13.
1 to 4.(Not reproduced here).
5. The Board has full discretion to fix minimum qualifying marks for selection in different categories i.e. UR/SC/ST/OBC/PH/EXSM in order to achieve qualitative selection and to recruit the best talent available.
6..(Not reproduced here).
7. In case of combined examination for more than one related posts the preference order of the posts by the candidate will be obtained in relevant column either at the time of application or in OMR sheet on the day of examination or at a later stage and that will be considered accordingly subject to the availability of the vacancy.
8 & 9..(Not reproduced here).
10. The Board may shortlist the candidates for written examination on the basis of marks in qualifying exam in case there is large number of candidates. In case of post of technical and specialized nature, the selection may be made on the basis of academic record & experience and interview if the number of eligible candidates does not exceed 100 and through a screening test followed by interview if the number of eligible candidates is more than 100 but does not exceed 500.
(Emphasis supplied).
4. The applicant, considering himself to be eligible for that post, applied for the said selection process, as he is possessing Masters Degree in Microbiology with Zoology and Botany as a subject at B.Sc. level from recognized University, and two years experience in analytical methods/research therein, in the relevant field. The applicant is aggrieved by the short-listing since undertaken by the respondents as per the result of the Screening Test dated 09.03.2014, notified on-line (Annexure A-4). The applicant has also provided the list of 24 candidates short-listed by the respondents for the Post Code 24/13 at page-52, 24 candidates for the Post Code 25/13 at page-53, 22 candidates for the Post Code 26/13 at page-54, 10 candidates for the Post Code 27/13, and 20 candidates for the Post Code 28/13 at page-53, 20 candidates for the Post Code 29/13 at page-56 of the OA, and thereafter a list of 11 candidates for the Post Code 31/13, 12 candidates for the Post Code 32/13 at page 57, 37 candidates for the Post Code 33/13 at page 58& 59, and 10 candidates for the Post Code 35/13 and 02 candidates for the Post Code 57/09 at page 59 of the OA.
5. The case of the applicant is that when the respondents have conducted the common single written examination by way of a Screening Test of qualifying nature for all the above mentioned posts on 09.03.2014, even though he had secured the qualifying marks in the said written examination, and meets all the eligibility requisites, yet he was not called for the interview for the post of Senior Scientific Assistant (Biology) which is scheduled to be held on 24.03.2014, while others who do not fulfill the eligibility as required, as is apparent from the previous result in respect of Advertisement No.02/12 dated 04.03.2013, were called for interview. He has thereafter discussed the cases of certain individuals, including that of the private respondent/Respondent No.3 Shri Suneet Kumar, whom he has chosen to represent all the candidates called for the interview, in a representative capacity, as an opposite party respondent.
6. It is trite law that advertisements inviting applications for recruitment are in the nature of invitations to offer, and the applications received from individual applicants in response to said advertisement are offers of the candidates concerned offering their services to be considered by the respondents against the post advertised.
7. The applicant has nowhere stated in this OA that after the publication of the result of the Screening Test on-line, he has approached the official respondents in regard to his exclusion, and inclusion of private respondent/Respondent No.3, and others, since Respondent No.3 has been made a party to the OA only in a representative capacity for selection against the said Post Code 29/13 in General Category.
8. The result of the Screening Test held on 09.03.2014 has been produced by the applicant at Annexure A-4, at which his name appears at Sl No.161, and 71 of 160 people above him who are candidates for multiple posts, and at least 9 of them are applicants for the same Post Code 29/13 alone. It is seen that while notifying the list of short-listed candidates for Post Code 29/13, produced by the applicant at Page-56, the respondents have gone by the said merit list only, and the short-list has been prepared on the basis of the result of combined Screening Test. Even in respect of the Private Respondent/Respondent No.3, his name appears at Sl No.138 in the list of combined marks obtained, while the name of the applicant himself appears at Sl No.161.
9. The applicant has filed his OA praying for the following final and interim reliefs:-
a) Declare that the applicant has been wrongly excluded from the list of candidates who are called for interview for the post of Senior Scientific Assistant. And
b) Quash and set aside the impugned list of candidates who are called for interview for the post of Senior Scientific Assistant (Biology). And
c) Direct the respondents to re-draw/modify the list of candidates to be called for interview for the post of Senior Scientific Assistant (Biology) after verifying the necessary documents (i.e. as to whether the selected candidates meets the essential qualifications and experience for the said post). And
d) Direct the respondents to further consider the case of the applicant for appointment to the said post with all consequential benefits viz. seniority, promotion etc.
d) Award costs of the proceedings and
f) Pass any other order/direction which the Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
Interim Relief:
Pending disposal of OA, this Honble Tribunal may graciously be pleased to direct the DSSSB to conduct the interview of the applicant, for purposes of selection to the post of the Senior Scientific Assistant (Biology), provisionally, for which the interview is scheduled to be held on 24.03.2014, by way of an ex-parte ad-interim order.
10. It is trite law that the concept of short-listing can be adopted by the selecting Authorities. The Honble Apex Court has in Union of India and Another vs. T. Sundararaman and Others (1997) 4 SCC 664, in Para 2 & 4 of the judgment, held as follows:-
2. In the present case 37 applications were received for the three posts. The Commission thereupon shortlisted the candidates to be called for interview on the basis of 4 years' experience or more. As a result, 20 candidates were called for interview. Respondent No.1 did not qualify for shortlisting and hence he was not called for interview.
3(Not reproduced here).
4. 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 vs. Navnit Kumar Potdar & Anr. JT (1994) 6 SC 302 this court has upheld shortlisting of candidates on some rational and reasonable basis. In that case, for the purpose of shortlisting, a longer period of experience than the minimum prescribed was used as a criterion by the 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 the 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. There will, however, be no order as to costs.
(Emphasis supplied)
11. It is also seen that in the present OA, the Interim Relief as prayed for by the applicant is in the nature of final reliefs at Para-8 (a) and 8 (d), as prayed for by the applicant, already cited above. As has been held in the case of Secretary, UPSC & Anr. vs. S. Krishan Chaitanya 2011 (8) SCALE 415, an Interim Relief order cannot be passed by us of such a nature by which a petition or application virtually comes to be finally allowed. We find that the Honble Apex Court has held to the same effect in the following cases also, to state that without adjudicating on the point in controversy, on which the grant of the final relief depends, the grant of interim relief amounts to granting the final relief, which is wholly unwarranted:-
i) Home Secretary, U.T. of Chandigarh vs. Darshjit Singh Grewal (1993) 4 SCC 25;
ii) State of U.P. & Ors. vs. Visheswar, 1995 Supp(3) SCC 590;
iii) Ritona Consultancy Private Limited vs. Lohia Jute Press, (2001) 3 SCC 68;
iv) Union of India and Others vs. M/s Modiluft Ltd., AIR 2003 SC 2218.
12. We observe that the applicant being at Sl No.161 of Annexure A-4, and the last General category candidate called for the interview, Respondent No.3 named in the OA, being at Sl No.138, much above him, we cannot find any fault with the process adopted by the respondents in calling the candidates for interview for the Post Code 29/13. It may be mentioned here that below Respondent No.3 Suneet Kumar at Sl. No.138, and above the applicant at Sl No.161, there is another candidate at Sl. No.148, named KKartik Rana, who had also applied for the same Post Code 29/13 alone, and who has also not been called for the interview, as per the list submitted by the applicant himself at page-56 of the OA. The said KKartik Rana had obtained 41.50 marks, while the applicant before us obtained only 40.00 marks in the Screening Test, and the applicant has failed to make the said Shri KKartik Rana as an opposite party respondent in the present OA. At this stage we may reproduce the relevant extract of the result of the Screening Test held on 09.03.2014 as under:-
SNo. Roll_No Category QMR Name DOB Postcode Marks 127-137.Not reproduced here 138 10001028 Gen Suneet Kumar (R-3) 22/11/1983 Multi 43.50 139-147.Not reproduced here 148 10000718 Gen KKartik Rana (Not made a party) 08/04/1989 29/13 41.50 149-160.Not reproduced here 161 10000708 Gen/GS Dharamveer Kapoor (Applicant) 09/03/1982 29/13 40.00
13. It is trite law that in view of the Conditions 5,7 & 10 regarding the Mode of Selection as specified in the advertisement, the applicant cannot be allowed to plead for being ordered to be interviewed without first the case of Kkartik Rana at Sl No.148 being considered who is above him in the said merit list but still he has not been called. By naming as Respondent No.3 only Shri Suneet Kumar, whose name appears at Sl No.138, and who had obtained 43.50 marks in the Screening Test held on 09.03.2014, the applicant cannot be allowed to obtain any relief by way of interim orders or final orders behind the back of said Shri KKartik Rana.
14. The learned counsel for the applicant laboriously argued about the specific qualifications and experience of the applicant vis-`-vis qualifications and experience of Respondent No.3 Shri Suneet Kumar. But he did not mention anything about the qualifications and experience and the higher marks obtained by Shri KKartik Rana, who is not a party before us. Therefore, it is clear that, as per the case presented before us, without making Shri Kkartik Rana also as a necessary party, the OA is liable to be dismissed in limine, at the admission stage itself.
(V. Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) cc.