Delhi High Court - Orders
Bharati Rathore vs Union Of India And Anr on 16 April, 2021
Author: J.R. Midha
Bench: J.R. Midha
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5229/2019 & CM Appls. 23128/2019, 28903/2020,
970/2021, 971/2021
BHARATI RATHORE ..... Petitioner
Through: Mr. Shivendra Pratap Singh,
Advocate
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Chetan Sharma, ASG with
Mr. Kirtiman Singh, CGSC with
Mr. Waize Ali Noor and Ms. Taha
Yasin, Advocates.
Mr. Naresh Kaushik, Advocate as
amicus curiae.
Ms. Poonam Singh, Director, Office
of Controller General of Patents,
Designs and Trade Marks
Dr. S.S Singh, Joint Controller, Office
of Controller General of Patents,
Designs and Trade Marks
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
ORDER
% 16.04.2021
1. The hearing has been conducted through video conference.
2. Vide order dated 12th April, 2021, this Court issued the following directions:-
"9. Respondent No.1 is directed to place on affidavit why the recruitment for the post of Examiner of Patents has not been Signature Not Verified Digitally Signed By:RAJENDER SINGH 1 KARKI Signing Date:17.04.2021 09:48:09 conducted in terms of the recommendations of the Committee. The decision taken in this regard be placed on record in the affidavit. The name/names of the officer/officers who took the decision be disclosed in the affidavit. The original record containing the aforesaid decision be produced before this Court on the next date of hearing.
10. The recruitment process initiated by respondent No.2 does not provide for interviews. The decision so taken along with the name/names of the officer/officers who took the decision be disclosed on affidavit and the original record be produced before this Court on the next date of hearing.
11. The recruitment process initiated by respondent No.2 reflects that no cut-off marks have been prescribed in the written test and four selected candidates have secured 30.3%, 29.3%, 29% and 19% marks. Respondent No.2 shall disclose on affidavit as to why no cut-off marks have been prescribed. The decision be placed on record on affidavit. The name/names of the officer/officers who took the decision be also disclosed in the affidavit. The original record containing the decision be produced before this Court on the next date of hearing.
12. The affidavit shall also disclose whether the approval of the Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions and Ministry of Human Resource Development was taken to conduct the examination in this manner.
13. Mr. Kirtiman Singh, learned Standing Counsel shall take up the matter with the Secretary (Personnel), Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions and Secretary, Ministry of Human Resource Development to ascertain whether they were aware of this recruitment process and what is their response to this recruitment process. The competent officer from Department of Personnel & Training/Ministry of Human Resource Development shall remain present in Court on the next date of hearing along with the Government policy for recruitment to the Gazetted Government Posts. The learned Standing Counsel shall produce the Government policy on recruitment and the list of Government jobs in which the recruitment is being done in this manner on the next Signature Not Verified Digitally Signed By:RAJENDER SINGH 2 KARKI Signing Date:17.04.2021 09:48:09 date of hearing.
14. Mr. Kirtiman Singh, learned Standing Counsel shall send the copy of this order to the Secretary, Ministry of Commerce and Industry for his response. The competent officer from Ministry of Commerce and Industry shall also remain present along with response on the next date of hearing.
15. Mr. Naresh Kaushik, learned amicus curiae shall take up this matter with UPSC and place on record the Government‟s policy for recruitment in Government jobs by UPSC as well as by recruitment other than the UPSC before the next date of hearing.
16. Respondent No.2 is also directed to place on record the decision taken to appoint the Committee on 06th February, 2019 to examine the equivalence of degrees. The name/names of the officer/officers who took the decision to form the Committee be also disclosed on the affidavit and the original record containing the decision be produced before this Court on the next date of hearing."
3. Mr. Naresh Kaushik, learned Amicus Curiae, has filed the written submissions with respect to the UPSC/Government policy for recruitment in government jobs. Mr. Naresh Kaushik, learned Amicus Curiae, submits that UPSC conducts the recruitment for Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS) by two written examinations namely preliminary and mains followed by the personal interview. The relevant portion of the submissions made by the learned Amicus Curiae are reproduced hereunder:
"1. That in the Union Public Service Commission (UPSC), the selection through Direct Recruitment is done through Open Competitive Examinations by the Examination Branch and through Recruitment Tests by the Recruitment Branch. Besides that, induction to Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS) in the States from State Civil Services and selection from Non-State Civil Servants to the IAS is done by the All India Services Branch.Signature Not Verified Digitally Signed By:RAJENDER SINGH 3 KARKI Signing Date:17.04.2021 09:48:09
2. That the details of selection procedure strictly followed by these Branches of the UPSC for selection of suitable and meritorious candidates are as under:
A. EXAMINATION BRANCH:
(i) That as per the Article 320 of the Constitution, the Commission has been entrusted with the mandate of conducting examinations for appointments to the services/posts of the Union (Government of India). In pursuance of this Constitutional Mandate, the Commission conducts 13 Structured Examinations strictly in accordance with the Rules of the Examinations notified by the Government (Nodal Ministries/Departments) and recommends the candidates of different categories to the Government for appointment keeping in view the category-wise vacancies (viz. SC/ST/OBC/PwBD/Ex-Serviceman) intimated by the Government (Participating Ministries/ Departments).
Subsequent to the declaration of results, the Commission forwards the dossiers of the recommended candidates to the Government (Nodal Ministry/Department concerned) for appointment and other formalities.
(ii) That these Examination Rules contain, inter-alia, eligibility conditions viz. age, educational qualification etc.; number of attempts (if applicable), relaxation to various categories, reservation, marks for different stages, preparation of list of qualified candidates for each stage and declaration of result including the final result etc.
(iii) That the Commission issues the Examination Notices for all the said Structured Examinations simultaneously on the date of issue of Notification of Rules by the Government in the Gazette. Through these Notices, the Commission invites the applications from the aspirants through the Online Application Forms released on the Commission‟s website. For conduct of these Examinations every year, the Commission publishes the Programme of Examinations/Recruitment Tests (Calendar) about six months in advance for the next year Signature Not Verified Digitally Signed By:RAJENDER SINGH 4 KARKI Signing Date:17.04.2021 09:48:09 for wide publicity and advance knowledge of the aspirants of different Examinations. The Calendar contains the dates of notifications, last dates of submission of applications and dates of conduct of Examinations. Hence, all these Examinations are conducted annually as per the scheduled indicated in the aforesaid Programme (Calendar).
(iv) That with regard to the Civil Services Examination (CSE), which is the biggest and flagship Examination of the Commission, it is stated that the Nodal Department of the Government for this Examination is Department of Personnel & Training (DoP&T). Rules of the CSE are framed and notified by the DoP&T in the Gazette of India. The Commission conducts the CSE annually for recruitment to IAS, IFS and certain other Services strictly in accordance with the Rules of this Examination. It is a multi-stages Examination, which consists of Preliminary, Main and Personality Test/Interview. Generally, the notification of Civil Services (Preliminary) Examination is released in a year and the final result of the examination is released after completion of all the stages involved herein.
(v) That the Preliminary Examination Stage always consists of Objective Type Papers and the Main Examination Stage consists of Descriptive Type Papers. Interviews of those candidates are conducted who qualify the Main Examination Stage. These stages vary from Examination to Examination. Result of each Stage of the Examination is released on the Commission‟s Website and through the Press Information Bureau. The cut-offs to decide the merit is fixed strictly as per the Rules of Examination. The minimum qualifying standards at Preliminary/ Main Stages including the Interviews and the marks secured by the last recommended candidate at the final stage of CSE and other Structured Examinations of the Commission depend upon several factors such as relative performance of candidates competing in any particular year, minimum qualifying standard in each or all papers Signature Not Verified Digitally Signed By:RAJENDER SINGH 5 KARKI Signing Date:17.04.2021 09:48:09 of the Examination and the number of vacancies reported by the Government under each category. In case of the Civil Services Examination, the candidates, who obtain such minimum qualifying marks in the General Studies Paper-I of Preliminary Examination as may be fixed by the Commission at its discretion and a minimum of 33% marks in General Studies Paper-II of Preliminary Examination, are declared qualified for the Civil Services (Main) Examination and accordingly they are made eligible for the Main Examination. The candidates, who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission at its discretion, shall be invited for Interview/Personality Test. Provided that candidates belonging to the SC/ST/OBC/EWS/PwBD category(ies) may be invited for Interview/Personality Test by the Commission by applying relaxed standards in the General Studies Paper-I of the Preliminary Examination as well as Main Examination if the Commission is of the opinion that sufficient number of candidates belonging to these categories are not likely to be invited for Interview/Personality Test on the basis of the general standard in order to fill up vacancies reserved for them.
B. Interview/Personality Test
(i) That the candidates are interviewed by a Board in the Commission who has before them a record of the candidate‟s career. The candidate is asked questions on matters of general interest. The object of the Interview/Personality Test is to assess the personal suitability of the candidate for a career in public service by a Board of competent and unbiased observers. The Interview/Personality Test is intended to judge the mental calibre of a candidate. In broad terms, this is really an assessment of not only intellectual qualities but also social traits and interest in current affairs. Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgement, variety and depth of interest, Signature Not Verified Digitally Signed By:RAJENDER SINGH 6 KARKI Signing Date:17.04.2021 09:48:09 ability for social cohesion and leadership, intellectual and moral integrity.
(ii) That the technique of the Interview/Personality Test is not that of a strict cross-examination but of a natural, though directed and purposive conversation which is intended to reveal the mental qualities of the candidate. The Interview/Personality Test is not intended to be a test either of the specialized or general knowledge of the candidates which has been already tested through their written papers. Candidates are expected to have taken an intelligent interest not only in their special subjects of academic study but also in the events which are happening around them both within and outside their own State or Country as well as in modern currents of thought and in new discoveries which should rouse the curiosity of well-educated youth.
(iii) That after Interview/Personality Test, the candidates are arranged by the Commission in the order of merit as determined by the aggregate marks finally awarded to each candidate in the Examination. Thereafter, the Commission, for the purpose of recommending candidates against unreserved vacancies, fixes a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up. For the purpose of recommending reserved category candidates belonging to SC/ST/OBC/EWS/PwBD categories against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Examination.
Provided that the candidates belonging to the SC/ST/OBC/EWS who have not availed of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission, are not recommended against the vacancies Signature Not Verified Digitally Signed By:RAJENDER SINGH 7 KARKI Signing Date:17.04.2021 09:48:09 reserved for SC/ST/OBC/EWS, but in the first instance are recommended by the Commission against the unreserved vacancies.
(iv) That after release of final result of an Examination vide which meritorious candidates are recommended, the Commission releases the Cut-off Marks for each Stage, Answer Key for the Objective Type Papers, Marks of both recommended and non-recommended candidates on its website.
(v) That no right to allocation and appointment to a Service is conferred to a candidate declared as successful by the Commission as per the results of the Examination, unless the Government is satisfied after such enquiry as may be considered necessary that the candidate, having regard to character and antecedents and certificates produced during the course of examination for the purpose of eligibility as well as for claiming any kind of benefit for reservation and to the Medical Examination Reports, is suitable in all respects for allocation/appointment to the Service.
C. RECRUITMENT BRANCH:
(i) That Recruitment process is initiated by the Commission
as and when a requisition for the same is received from the indenting Ministries/Departments. These recruitment requisitions are based on notified Recruitment Rules for the posts concerned framed in consultation with the Commission and notified by the Ministry/Department concerned. The recruitment requisitions contains details inter-alia, with regard to the eligibility conditions for the post concerned including qualification, both Essential Qualification(s) as well as Desirable Qualification(s), experience required, age limit, number of vacancies, reservation position etc. The recruitment advertisements are published by the Commission on the basis of the details contained in the recruitment requisitions.
(ii) That in cases where the number of applications received is large; the Commission adopts short listing criteria to restrict the number of candidates to be called for Signature Not Verified Digitally Signed By:RAJENDER SINGH 8 KARKI Signing Date:17.04.2021 09:48:09 interview to a reasonable number by any or more of the following methods:
(a) On the basis of Desirable Qualification (DQ) or any one or all of the DQs if more than one DQ is prescribed.
(b) On the basis of higher educational qualifications than the minimum prescribed in the advertisement.
(c) On the basis of higher experience in the relevant field than the minimum prescribed in the advertisement.
(d) By counting experience before or after the acquisition of essential qualifications.
(e) By invoking experience even in cases where there is no experience mentioned either as Essential Qualification (EQ) or as Desirable Qualification (DQ) and
(f) By holding a Recruitment Test.
In order to rationalise the time of the Interview Boards and also to reasonably restrict the number of candidates to be called for interview, a set of norms, which are indicative, is adopted by the Commission as below:
For 1 Post Up to 12 candidates
For 2 - 3 Posts Up to 24 candidates
For 4 - 6 Posts Up to 36 candidates
For 7 - 9 posts Up to 48 candidates
For 10 Posts and above Up to 50 candidates or above
(5 times the number of posts)
In bulk recruitment cases where there is a written test not more than 3 candidates who would be qualified on the basis of written test are called for interview for each post.
Signature Not Verified Digitally Signed By:RAJENDER SINGH 9 KARKI Signing Date:17.04.2021 09:48:09The above ratio would serve only as a general guideline and in each case decision is taken by the Commission depending upon the merits of the case.
In interviews, marks awarded to candidates on a scale of 100. Whereas the minimum level of suitability in interviews is fixed as 50 marks, relaxation is accorded to candidates belonging to reserved categories as indicated below:
Category Marks OBC 45 SC/ST/PH 40 D. ALL INDIA SERVICES BRANCH: (i) That the Commission‟s role is to convene the Selection
Committee Meeting (SCM) to prepare the Select list for induction of State Service Officers to All India Services i.e. IAS/IPS/IFoS under Indian Administrative Service (Appointment by Promotion) Regulations, 1955, Indian Police Service (Appointment by Promotion) Regulations, 1955 and Indian Forest Service (Appointment by Promotion) Regulations, 1966 respectively. As per Promotion Regulations, the number of vacancies against which selection is to be made for a particular recruitment year for promotion (induction) is determined by the respective cadre controlling Authorities in Government of India in consultation with the State Government concerned. Thereafter, the State Government forwards a proposal to the Commission which is examined in the Commission for its completeness before placing it before the Selection Committee for consideration.
(ii) That the State Government submits the proposal which contains the eligibility list, which is in consonance with the seniority list, status of disciplinary proceeding/criminal proceeding/integrity/penalty for last 10 years/court case etc. for consideration for promotion Signature Not Verified Digitally Signed By:RAJENDER SINGH 10 KARKI Signing Date:17.04.2021 09:48:09 to IAS/IPS/IFS from respective state services. The criteria for inclusion in the eligibility is:-
(a) the officer should be substantive in the State Civil/Police/Forest Service,
(b) should have completed not less than 8 years of continuous service (whether officiating or substantive in the post of Deputy Collector/Deputy SP/State Forest Service or posts declared equivalent thereto by the State Government),
(c) Has not crossed fifty six years of age as on first January of the year for which the Select List is being prepared.
According to the scheme provided under the regulations, the Selection Committee is required to classify the eligible officers as „Outstanding‟, „Very Good‟, and „Good‟ or „unfit‟, as the case may be, on an overall relative assessment of their Service records.
The list shall be prepared by including the required number of names (i.e. equal to the number of vacancies), first from amongst the officers finally classified as „Outstanding‟ then from amongst those similarly classified as „Very Good‟ and thereafter from amongst those similarly classified as „Good‟ and the order of names inter- se within each category shall be in the order of the their seniority in the State Civil Service.
(iii) Indian Administrative Service (Appointment by Selection) Regulations, 1997.
That for selection of Non-SCS officers for appointment to IAS, assessment is made on the basis scrutiny of records and personal interview in terms of Regulation 5 of the IAS (Appointment by Selection) Regulations 1997.The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connection with the affairs of the State who,
(a) is of outstanding merit and ability; and Signature Not Verified Digitally Signed By:RAJENDER SINGH 11 KARKI Signing Date:17.04.2021 09:48:09
(b) Holds a Gazetted post in a substantive capacity; and
(c) Has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service and proposed the person for consideration of the Committee. The number of persons proposed for consideration of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year.
The suitability of the officers whose candidature is proposed by the State Government concerned is assessed by the Selection Committee on the basis of scrutiny of their service records and personal interview. For this, guidelines have been framed by the Commission for selection of Non-SCS officers for appointment to the IAS which are applied uniformly in the matter of selection of Non-SCS officers into the IAS. As per the guidelines, out maximum 100 marks, the weightage for each of the components (service records and personal interview) is to be given as follows:
(i) Service records with particular reference 50% weightage or 50 to ACRs for the five preceding years marks
(ii) Personal Interview 50% weightage or 50 marks Total 100 marks A minimum of 50% marks in each of the two components viz. the ACR assessment and the Signature Not Verified Digitally Signed By:RAJENDER SINGH 12 KARKI Signing Date:17.04.2021 09:48:09 personal interviews must be separately obtained by the Non-SCS officers for qualifying for selection for appointment to the IAS under the Selection Regulations.
The suitability of a person for appointment to the service is determined by scrutiny of service records and personal interview i.e. total marks obtained."
4. Ms. Poonam Singh, Director, Office of Controller General of Patents, Designs and Trade Marks is present in Court through video conference. This Court enquired from her as to why the examination has not been conducted according to the Report of the Committee, as mentioned in paras 4 to 7 of the order dated 12th April, 2021, to which she submits that she is on deputation for the past one and half year and she is not aware as to why the examination has not been conducted according to the recommendations of the Committee. She further submits that she is not aware as to who took the decision to conduct the examination only by written test without any cut off marks and without the personal interview.
5. This Court is not satisfied from the response of Ms. Poonam Singh, Director, Office of Controller General of Patents, Designs and Trade Marks. This Court is further of the view that it is prima facie not believable that she is not even aware as who took the decision to conduct the recruitment in this manner.
6. Mr. Abhinder Joshi, Director, DoPT, Ministry of Personnel, Public Grievances and Pensions present in Court through video conference submits that there is no uniform policy for conducting the recruitment by the government at gazette post. He further submits that it is for the appointing authority to take a decision. This Court is not satisfied with the response Signature Not Verified Digitally Signed By:RAJENDER SINGH 13 KARKI Signing Date:17.04.2021 09:48:09 given by Mr. Abhinder Joshi.
7. Mr. Chetan Sharma, learned Additional Solicitor General, seeks further time for compliance of the order dated 12th April, 2021 on the ground that the offices were closed on 13th April, 2021 and 14th April, 2021. Mr. Chetan Sharma, learned ASG, further submits that he shall take up the matter with the Government at the highest level to examine whether the process of recruitment for the gazetted post for quasi-judicial work can be conducted by written test without any cut off marks and without any personal interview. Learned ASG further submits that he shall also examine whether the recruitment in question can be said to be in compliance with due process of the law. Learned ASG further submits that he shall examine whether uniform recruitment government policy exists and if it does not exist, whether such policy can be issued. Learned ASG shall also examine the case on merits and assist this Court on the next date of hearing.
8. Mr. Kirtiman Singh, learned Standing Counsel, shall place on record the litigation policy of the Government. This issue is being examined by this Court in RFA 457/2017 and W.P.(C) 7553/2015 which are listed today before this Court. Mr. Chetan Sharma, learned ASG, and Mr. Kirtiman Singh, learned Standing Counsel, shall assist this Court in those matters as well. The Court Master shall send the digitalized copy of the record of both the cases to Mr. Chetan Sharma, learned ASG and Mr. Kirtiman Singh learned Standing Counsel.
9. List for further hearing on 20th April, 2021 at 04:00 PM.
10. Mr. Kirtiman Singh, learned Standing Counsel, shall send the copy of the order dated 12th April, 2021 and this order to the Cabinet Secretary; Secretary (Personnel), Department of Personnel & Training, Ministry of Signature Not Verified Digitally Signed By:RAJENDER SINGH 14 KARKI Signing Date:17.04.2021 09:48:09 Personnel, Public Grievances and Pensions; Secretary, Department of Administrative Reforms & Public Grievances, Ministry of Personnel, Public Grievances and Pensions; Secretary (Higher Education), Department of Higher Education, Ministry of Education (earlier known as Ministry of Human Resource Development) and Secretary, Minister of Commerce & Industry.
11. Mr. A. S. Chandhiok, learned Senior Counsel, shall assist this Court as Amicus Curiae in this matter along with Mr. Naresh Kaushik, learned Amicus Curiae. The Court Master shall send the digitalized copy of the record of this case to Mr. A. S. Chandhiok.
12. Mr. Nikhil Goel, learned Standing Counsel for CBI shall also assist this Court in this matter. The Court Master shall send the digitalized copy of the record of this case to Mr. Nikhil Goel.
13. The order be uploaded on the website of this Court forthwith.
J.R. MIDHA, J.
APRIL 16, 2021 ds Signature Not Verified Digitally Signed By:RAJENDER SINGH 15 KARKI Signing Date:17.04.2021 09:48:09