Delhi High Court
Debashis Mukherjee vs Competition Commission Of India on 29 October, 2014
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7312/2012
Decided on 29.10.2014
IN THE MATTER OF :
DEBASHIS MUKHERJEE ..... Petitioner
Through: Petitioner in person.
versus
COMPETITION COMMISSION OF INDIA ..... Respondent
Through: Mr. Rajeev Saxena, Advocate with
Mr. Rohan Ahuja, Ms. Mehak Tanwar and
Mr. Vardaan Dhawan, Advocates
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The petitioner has filed the present petition praying inter alia that the respondent/Competition Commission of India (hereinafter referred to as „respondent/CCI') be directed to consider his candidature for engagement as an Expert in the field of law, by giving weightage to his qualifications and experience.
2. The relevant facts of the case are that on 28.03.2012, the respondent/CCI had published a notice on its website, inviting applications from eligible candidates for engagement of fifteen W.P.(C) 7312/2012 Page 1 of 10 experts/professional to assist the Commission in the discharge of its functions under the Competition Act. As per Clause 5 of the said notice, the application alongwith copies of supporting documents (viz. educational qualification and experience) was required to be sent to the respondent/CCI by 30.04.2012. The notice issued by the respondent/CCI had clarified that the experts would be engaged in Level I and Level II and those candidates who had higher educational qualifications and experience with exceptional profile would be considered for engagement as Expert (Level III) in the relevant field.
3. Pursuant to the aforesaid notice, the petitioner had submitted his application for being engaged as an Expert in the field of Law for Level-II well before the cutoff date, i.e., before 30.04.2012. The respondent/CCI had conducted interviews for engagement of Experts in Law for Level II on 18.06.2012 and subsequently, on 25- 26.10.2012, but the grievance of the petitioner is that he was not called for the interview on either occasion. Aggrieved by the aforesaid action of the respondent/CCI in failing to consider his candidature to the subject post, the petitioner has filed the present petition.
4. The petitioner, who appears in person, submits that he is a practicing advocate and was enrolled with the Bar Council of Delhi in W.P.(C) 7312/2012 Page 2 of 10 the year 2006 and ever since then he has been practicing in the Supreme Court of India, the High Court of Delhi and other Courts and Tribunals based in Delhi. He submits that he is holder of a LLB degree, from GGSIP University and though he possesses the essential educational qualifications and experience, as prescribed by the respondent/CCI, his candidature has been arbitrarily overlooked. The petitioner particularly draws the attention of the Court to the additional affidavit filed by him under index dated 30.11.2012, wherein it has been averred that he possesses the desirable higher qualification, having pursued a Post Graduate Diploma in International Trade and Business Laws from the Indian Academy of International Law and that the respondent/CCI had ignored the fact that the petitioner had completed the LLM course from Annamalai University before the second set of interviews for the subject post were conducted by the CCI, in the month of October, 2012.
5. A counter affidavit in opposition to the present petition has been filed by the respondent/CCI, wherein it has been stated that pursuant to issuance of the notice dated 28.03.2012, published by the Commission on its website, proposing to fill up ten vacancies in the field of Economics, two vacancies in the field of Financial Analysis and three vacancies in the field of Law, a total of 148 applications were received by the Commission in the field of Law (71 for Level I, W.P.(C) 7312/2012 Page 3 of 10 36 for Level II and 41 for Level III). After scrutiny of the said applications, the respondent/CCI had shortlisted a total of 43 candidates in the field of Law (13 for Level I, 15 for Level II and 15 for Level III). Out of the applications received, the Commission had also created a databank of other eligible candidates to be utilized for future appointment. Thereafter, the candidates who were shortlisted in the field of Law, were called for interviews from 18.06.2012 to 20.06.2012.
6. The Selection Committee constituted by the respondent/CCI for interviewing and selection of the shortlisted candidates comprised of four members (two members of the Commission including one of the members being a retired Judge of the High Court of Delhi), the other two members were the Advisor (Law) and Secretary (Incharge) of the Commission. On the recommendations made by the Selection Committee, two candidates were selected by the respondent/CCI and they were offered letters of appointment and five candidates were placed on the waiting list. Later on, in the month of September, 2012, three vacancies had arisen for appointment to the post of Law Experts in the Legal Division of the respondent/CCI and some of the candidates, who were selected earlier, did not join for various reasons. Keeping in mind the urgency for appointment, the Commission utilized the databank of the other eligible candidates that W.P.(C) 7312/2012 Page 4 of 10 was created when the applications were received from candidates upon issuance of the notice dated 28.03.2012. Twenty candidates were shortlisted by the respondent/CCI from the said databank and they were called for the interview on 25-26.10.2012. The Selection Committee made its recommendations for engagement of Experts in the field of Law as per the regulations as well as on merits, while keeping in mind their qualifications and professional experience.
7. Coming to the petitioner herein, Mr. Saxena, learned counsel for the respondent/CCI submits that since he had failed to provide a single certificate/testimonial that threw light on his professional experience, his application was found to be incomplete in all respects and resultantly, his name was not shortlisted for the interview in both the phases of selection. He further submits that the averments made by the petitioner in his rejoinder that he had attached a copy of his Enrolment Certificate issued by the Bar Council of Delhi would not suffice as the said certificate is not material for certifying that he had acquired adequate experience as a practicing advocate at the Bar.
8. The Court has heard the counsels for the parties and carefully considered their submissions in the light of the averments made in the pleadings and the documents placed on record.
W.P.(C) 7312/2012 Page 5 of 10
9. A perusal of the notice dated 28.03.2012 issued by the respondent/CCI, inviting applications for engagement of Experts and Professionals in the fields of Economics, Financial Analysis and Law, clearly reveals that Clause 5 therein had stipulated that the candidates should submit their applications by the cut-off date along with copies of the supporting documents namely, their educational qualifications and experience. It is an undisputed position that in the present case, the petitioner had submitted his application but he had chosen to attach a solitary document, i.e., a copy of his enrolment certificate with the Bar Council of Delhi. In other words, the petitioner did not annex copies of the documents relating to his educational qualifications, namely, the LLB degree obtained by him or his work experience, by way of a C.V. or testimonials issued in his favour.
10. The LLM degree obtained by the petitioner subsequently, i.e., after he had submitted his application could not change the situation as the petitioner had failed to mention the fact that at the time of submitting his application for engagement as an Expert in the field of Law (Level II), he was a student of LLM. Further, for reasons best known to him, the petitioner had failed to enclose a work experience certificate with his application. As a result, the respondent/CCI did not have the benefit of any document to assess the expertise and W.P.(C) 7312/2012 Page 6 of 10 experience of the petitioner in the field of law, for considering his candidature to the subject post.
11. The additional affidavit filed by the petitioner subsequently, wherein he has sought to elaborate his educational qualifications and experience, would not be of any use for the reason that it was incumbent on him to have furnished all the said information alongwith his application in terms of Clause 5 of the notice dated 28.03.2012 and that too by the cut-off date prescribed by the respondent/CCI. Having failed to do so at the relevant point in time, the petitioner cannot be permitted to make good the said deficiency by belatedly referring to his work experience and/or professional experience and relying on the averments made by him in the additional affidavit filed on 1.12.2012.
12. It is a settled law that when an employer invites applications for appointment to a particular job, it is his prerogative to stipulate the educational qualifications and other criteria for selection to the post, including seeking documents to establish the work experience, etc., gained by a candidate. In this context, the Court may usefully refer to the following observations made by the Supreme Court in the case of UOI vs. Pushpa Rani & Ors., reported as (2008) 9 SCC 242 :
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal W.P.(C) 7312/2012 Page 7 of 10 position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration." (emphasis added)
13. If a candidate is called upon to submit certain documents to establish his educational qualifications and demonstrate his work experience, then an application devoid of the relevant details and lacking in the supporting documents would have to be treated as incomplete and be liable to be rejected at that stage. Admittedly, the petitioner herein had submitted his application without the supporting documents as prescribed by the respondent/CCI. In such circumstances, the respondent/CCI cannot be blamed for treating the petitioner‟s application as incomplete in all respects and resultantly, W.P.(C) 7312/2012 Page 8 of 10 refusing to shortlist him for the interview that was held in the first phase in June, 2012 and in the second phase in October, 2012.
14. In view of the facts that have emerged on a perusal of the averments made in the writ petition and the rejoinder filed by the petitioner to the effect that the application submitted by him was bereft of the supporting documents, namely, his educational qualifications and the work experience, this Court is of the opinion that the respondent/CCI was justified in declining to consider the petitioner‟s application for engagement as an Expert in the field of Law. There was no material placed before the respondent/CCI to assess the petitioner‟s expertise in the field of law so as to arrive at any reasonable conclusion. It is fallacious on the part of the petitioner to contend that the certificate of enrollment issued by the Bar Council of Delhi in the year 2006 was sufficient for the respondent/CCI to infer that he had been practicing as a lawyer in the courts ever since then. There are innumerable cases where persons get enrolled with the State Bar Councils but elect not to practice at all.
15. It is therefore held that the petitioner is not entitled to the relief, as prayed for, and the respondent/CCI cannot be faulted for declining to consider his application for appointment to the subject W.P.(C) 7312/2012 Page 9 of 10 post, the same not being in order and not fulfilling the requirements stipulated in the notice dated 28.03.2012. Accordingly, the present petition is dismissed as being devoid of merits, while leaving the parties to bear their own costs.
(HIMA KOHLI)
OCTOBER 29, 2014 JUDGE
rkb/mk
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