Supreme Court - Daily Orders
Union Of India vs Anu Kumari on 11 April, 2019
Bench: Ashok Bhushan, K.M. Joseph
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3877 OF 2019
(Arising out of SLP(Civil) No.29438 of 2018)
UNION OF INDIA APPELLANT(S)
VERSUS
ANU KUMARI & ANR. RESPONDENT(S)
WITH
CIVIL APPEAL No.3878 OF 2019
(Arising out of SLP(Civil) No.31394 of 2018)
O R D E R
Leave granted.
These appeals have been filed against the judgment of the Delhi High Court dated 04.09.2018 in Writ Petition No.8474/2018. The writ petition was filed by respondent No.1-Anu Kumari in the Delhi High Court questioning the judgment of the Central Administrative Tribunal dated 31.07.2018. The first respondent was a successful candidate in the Central Civil Services Examination, 2017.
Signature Not Verified
Brief facts, which are necessary for deciding these Digitally signed by ARJUN BISHT Date: 2019.04.16 17:19:47 IST Reason: appeals are that Union of India, Ministry of Personnel, 1 Public Grievances and Pensions issued a detailed notification regarding filling-up of vacancies in various services/posts including I.A.S., I.F.S., I.P.S. etc. on 22.02.2017. The first respondent appeared in the preliminary examination in June 2017 and was successful. The main examination was held on 20.10.2017 where she was declared successful. With regard to preference allocation a new Cadre Allocation Policy was notified vide O.M. dated 05.09.2017 and a Press Note, Annexure P-3, was issued by the Government of India on 10.01.2018 where candidates were requested to fill-up the addendum to DAF online for submitting their zones & cadre preferences. Paragraph 5 of the Press Note is to the following effect:
"5. At the time of filling up of Detailed Application Form (DAF), Cadre Preferences were not obtained from the candidates qualified for Civil Services (Main) Examination, 2017 and it was inter alia mentioned in Column IX of DAF that the Revised Cadre Policy was under consideration in the Government (Department of Personnel & Training) for the All India Services. The Government has since issued the Cadre Allocation Policy on 05.09.2017, which is available on the DoP&T's website in accordance with this Revised Cadre Allocation Policy all the candidates, who have qualified for Personality Test (Interview), are requested to fill up the Addendum to DAF Online for submitting their Zones & Cadre Preferences. The Addendum to DAF will be made available on the Commission's website from 16/01/2018 to 29/01/2018 (06:00 P.M.). Candidates are advised to visit the website of Department of Personnel & Training at the link http://persmin.gov.in/AISI/Qry/CA.asp for perusing the Cadre Allocation Policy- 2017. They are also advised to go through the 2 details of the Cadre Allocation Policy 2017 extremely carefully before submitting their preferences for Zones as well as Cadres there under. The preferences once opted and submitted cannot be modified or changed at a later stage. Therefore, the candidates are advised to exercise due diligence while filling up the preferences for Zones as well as Cadres there under. If a candidate fails to submit the Addendum to DAF by last date/time, it will be considered that the candidate has no preference to make for Zones & Cadres and no request shall be entertained in this regard."
Respondent No.1 although logged-in in the website of Union Public Service Commission (UPSC) and has saved preferences but she could not submit the zone preferences to the UPSC. 29.01.2018 at 6 pm was the last date and time for submitting the preferences. On 29.01.2018 at 6.29 pm respondent No.1 sent an e-mail to the UPSC, which is to the following effect:
"Mon, 29.01.2018 at 6:29 PM Dear Sir, Due to some network problem, I was not able to submit the cadre preferences.... Just 20 minutes back; the portal got closed. So, I request you to please consider the saved preferences as my submission. Please guide me how to proceed. Please sir....a humble request."
Respondent No.1 thereafter sent several other e-mails which were replied by the UPSC on 13.02.2018 and 21.02.2018. Respondent No.1 was intimated that in view of the clear stipulation of the press note dated 10.01.2018 that since she failed to submit her preferences within 3 the stipulated period, her preferences for zones and cadres has been treated as nil. The final result/merit of the successful candidates was declared on 27.04.2018 in which the first respondent secured second position in all India ranking. Aggrieved by the rejection of her request by the UPSC, the first resopndent filed O.A. No.2635/2018 before the Central Administrative Tribunal, New Delhi. UPSC filed a reply to the O.A. Union of India also filed a reply. Central Administrative Tribunal by its order dated 31.07.2018 rejected the O.A. against which the writ petition was filed in the High Court which has been allowed by the impugned judgment. High Court vide impugned judgment issued following directions:
"26. In view of the aforesaid discussion, the present petition succeeds. The impugned order dated 31.07.2018 passed by the Tribunal, is quashed and set aside. The respondents are directed to consider the preferences of the petitioner in terms of Annexure R-2/6, extracted in para 15 above, along with those of the other candidates for purposes of allocation of Zones/Cadre. Before parting with the case, we may clarify that the relief granted to the petitioner herein is a one time exception made in the peculiar fact situation and will not be treated as the rule."
Aggrieved by the aforesaid judgment, the Union of India as well as four other candidates, who were also successful in the examination has come up challenging the order of the Delhi High Court.
We have heard Shri R. Balasubramanian, learned 4 senior counsel appearing for the Union of India and Shri Sidharth Luthra, learned senior counsel appearing for the appellants in Civil Appeal No.3878/2019 and Shri Swastik Singh, learned counsel appearing for the respondent No.1. We have also heard learned counsel appearing for the UPSC, who has also supported the case of the Union of India.
Shri Balasubramanian, learned senior counsel appearing for the Union of India submitted that respondent No.1 having failed to submit her preferences within the time, as prescribed, she lost her right to claim in zone preferences and there being clear stipulation in press note dated 10.01.2018 that a candidate who fails to submit her preferences, her preference for zone and cadre shall be treated as nil. It is submitted that the press note dated 10.01.2018 has been applied uniformly to all candidates and no exception can be made with regard to respondent No.1. It is submitted that, from the materials brought on record, it is clear that respondent No.1 has logged-in the website of the UPSC but she never submitted her preferences to the UPSC. She having failed to exercise the option given to her to submit her zone preferences, she cannot claim any right after lapse of time. The mere fact that the respondent No.1 has saved her preferences shall also not give any benefit to her since the said preferences were 5 never communicated to the UPSC. It is also not the case of the respondent No.1 that she ever communicated the preferences, rather e-mail sent on 29 minute after the closure of the time itself says that she could not sent preferences. It is submitted that as per the interim order passed by this Court on 26.11.2018, the appellants have proceeded with the finalization of the cadre allocation and the cadre have already allotted to all candidates including the respondent No.1 who has been allocated to Kerala cadre. Learned counsel appearing for the UPSC submitted that with regard to respondent No.1 no exception can be made. Respondent No.1 has never submitted her preferences although she has logged-on the website of the UPSC. It is further submitted that website of the UPSC was through out in working condition and on last day more than 624 candidates have submitted their zone preferences which itself clarifies that there was no glitch in the website and the respondent No.1, if wanted, can very well submit her preferences.
Learned counsel appearing for the respondent No.1 submits that the High Court has taken a correct view of the matter and adjusted the equities of the parties. It is submitted that the respondent No.1 is a female candidate, who has one son to look after, her home State is Haryana and she separated from her husband. It is submitted that she has saved the preferences which 6 preferences have already been reflected in the judgment of the High Court and it was only due to certain network problem that she could not submit it but immediately after 6 pm i.e. at 6.29 pm she sent an e-mail reiterating her preferences, which were already saved, hence the appellants and Commission could have very well accepted the preferences and present was the case where the High Court was fully justified in issuing the direction to accept such preferences.
Shri Sidharth Luthra, appearing for the appellants in Civil Appeal No.3778/2019 has also adopted the submissions made by learned counsel appearing for the Union of India. He further submitted that present is a case where the respondent No.1 has logged-in the website of UPSC at five times and the last login was on 25.01.2018. It is submitted that according to own case of the respondent No.1 she has saved her preferences on 17.01.2018 and after 17.01.2018 for 12 days she could not submit, which itself shows that she has decided not to submit her preferences and it is not a case of any glitch or any problem in the network due to which she could not submit her preferences. Learned counsel for the appellants further referred to interview, transcript of which has been brought on record, where after the declaration of the result the respondent No.1 has stated that she has not submitted any preferences and she is 7 ready to work anywhere.
We have considered the submissions of learned counsel for the parties and perused the record.
From the press note dated 10.01.2018, which has been relied by learned counsel for the Union of India it is undisputed that all candidates have to submit their preferences as per the said press note. In paragraph 5, it was clearly stipulated that "if a candidate fails to submit the addendum to DAF by last date/time, it will be considered that the candidate has no preference to make for Zones & Cadres and no request shall be entertained in this regard". The facts of the present case, as is revealed from the materials on record, clearly indicates that the respondent No.1 is well aware of the instructions dated 10.01.2018. She has also logged-in the website of the UPSC for five times and on 17.01.2018 has saved her preferences. From the record it is also clear that last time when she logged-in in the website was 25.01.2018 and after 25.01.2018 no steps were taken till 29.01.2018 which was the last date. After 6 pm on 25.01.2018 at 6.29 pm e-mail has been sent which has already been extracted by us above. The e-mail which has been sent by respondent No.1 clearly mentions that due to some network problem she was not able to submit the cadre preferences, just 20 minutes back the portal got closed. 8 The respondent No.1 has requested the Commission to consider the saved preferences as her submission. From the record, it is clear that after 25.01.2017 she has not made any effort to login. Thus it cannot be accepted that due to network problem she was enable to submit it. The High Court has made following observations in paragraph 15:
"15. Admittedly, the petitioner herein who was one of the candidates who had qualified for the personality test/interview, had logged onto the website of the respondent No.2/UPSC for a preview of the form and she had filled in the following preferences, but was late by 29 minutes in submitting the form on 29.01.2018, being the last day:-
Whether you want to consider your Home State Haryana as your first preference as Home Cadre? - YES"
The inference of the High Court that respondent No.1 was late by 29 minutes in submitting the form does not appear to be correct. There is no dispute between the parties that respondent No.1 has saved her preferences which were retrieved from the website and has been noticed by the High Court, but there is no denying that the said preferences were never submitted. The High Court has gone into the respondent No.1's socio-economic background and the other factors pertaining to female population and number of female officers in the IAS cadre.
Learned counsel appearing for the Union of India has fairly submitted that the Union of India is also all 9 for women empowerment and the policies of Union of India, as and when permissible, having all consideration for female candidates and their special circumstances. Learned counsel for the Union of India submitted that with regard to cadre change there are only two exceptional circumstances as has been mentioned in the relevant guidelines, apart from that Union of India has not permitted any cadre change. It is submitted that the Union of India has always sympathetic consideration with regard to females or other candidates as and when required necessary accommodation by accepting the candidates on deputation to the Union Territory or other places have been acceded to, but there are no circumstances where cadre change has been permitted. He further very fairly submitted that in case of respondent No.1 if any request is made for deputation the same shall also be favourably considered.
We, in all aspects of the view, are of the considered opinion that in facts of the present case no error can be found in the decision of the Commission communicating the respondent No.1 that her option cannot be considered at that stage. We are of the view that High Court committed error in allowing the writ petition by issuing the directions, as extracted above.
We are, thus, of the view that the appeals be allowed. We, however, while allowing the appeals take on 10 record the submissions of Union of India that in event any request, pertaining to deputation, is made by the respondent No.1, the same shall be considered favourably in accordance with law. Subject to above, appeals are allowed.
...................J. (ASHOK BHUSHAN) ...................J. (K.M. JOSEPH) New Delhi April 11, 2019 11 ITEM NO.16 COURT NO.12 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).29438/2018 (Arising out of impugned final judgment and order dated 04-09-2018 in WP(C) No. 8474/2018 passed by the High Court Of Delhi At New Delhi) UNION OF INDIA Petitioner(s) VERSUS ANU KUMARI & ANR. Respondent(s) (FOR ADMISSION and I.R. and IA No.159605/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) WITH SLP(C) No.31394/2018 (XIV) (FOR ADMISSION and I.R. and IA No.160992/2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS) Date : 11-04-2019 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE K.M. JOSEPH For Petitioner(s) Mr. R. Balasubramanian, Sr. Adv. Ms. Aishwarya Bhati, Sr. Adv.
Ms. Swati Ghildiyal, Adv.
Mr. Kanu Agrawal, Adv.
Mr. Arvind Kumar Sharma, AOR Mr. Sidharth Luthra, Sr. Adv.
Mr. Kumar Vaibhaw, Adv.
Mr. Shivanshu Singh, Adv.
Mr. Manoj Kumar N., Adv.
Ms. Anubha Agrawal, AOR
For Respondent(s)
R-1 Mr. Swastik Singh, Adv.
Mr. Atul Singh, Adv.
Mr. Utkarsh Goel, Adv.
Mr. Raghu Vashishth, Adv.
Ms. Monisha Handa, Adv.
Mr. Nitish Pathania, Adv.
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Mr. Mohit D. Ram, AOR
Mr. Naresh Kaushik, Adv.
Mr. Manoj Joshi, Adv.
Mr. B. Purushothama Reddy, Adv.
Mr. Rahul Sharma, Adv.
Mr. Devik Singh, Adv.
Ms. Rebbeca Dais, Adv.
Mrs. Lalitha Kaushik, AOR
Mr. Suhaas Ratna Joshi, AOR
UPON hearing the counsel the Court made the following O R D E R Leave granted.
Appeals are allowed in terms of the signed order.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file)
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