Punjab-Haryana High Court
Chandigarh Administration & Another vs Central Administrative Tribunal & ... on 7 November, 2011
Author: Tejinder Singh Dhindsa
Bench: Permod Kohli, Tejinder Singh Dhindsa
CWP No.20528 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.(CAT) :20528 of 2011 (O&M)
Date of decision: 07.11.2011
Chandigarh Administration & another ... Petitioners
Versus
Central Administrative Tribunal & others ... Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
Present: Mr. Munish Behl, Advocate
for the petitioners.
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Tejinder Singh Dhindsa, J.
The Chandigarh Administration is before us in the present writ petition wherein the challenge is to the order dated 22.02.2011 passed by the Central Administrative Tribunal (hereinafter be referred as 'CAT') Chandigarh Bench, Chandigarh whereby CAT has set aside the selection to the post of Pharmacists under the Health Department, Chandigarh Administration and has further directed to make appointments to such posts on the basis of a merit list to be prepared afresh.
Facts in brief may be noticed. An advertisement dated 30.11.2008 was issued by the Chandigarh Administration, Health Department inviting applications for filling up the posts of Pharmacists (Group - C ) in the pay scale of ` 4,550-7,220/- (two posts were to be filled up from the General Category and one post from the OBC CWP No.20528 of 2011 (O&M) -2- Category). The requisite qualification and experience for the post was mentioned in the advertisement and the same read as follows:
"Qualification and Experience:-
1.10+2 Medical or pre-Medical with one year Diploma in Pharmacy and Dresser's Course from recognized institute.
OR
i) Matric with Physics and Chemistry
ii) Two years Diploma in Pharmacy and Dresser course from recognized institute or its equivalent.
2.Registered as Pharmacist with U.T., Chandigarh Pharmacy Council.
3.The practical training shall not be less than 500 hrs. spread over period of not less than 3 months provided that not less than 250 hrs. are devoted to actual dispensing of prescription."
It is noticed that as many as 99 applications were received in the General Category and 19 applications were received in the OBC Category. After scrutiny, a total of 45 applications were assessed to be eligible and finally 41 candidates ultimately appeared before the Interview Committee on 15.06.2009. Respondent No.3 was duly selected and appointed on the post of Pharmacist(General Category) in July, 2009. Respondent No.2 thereafter sought information under the provisions of the Right to Information Act, 2005 and upon such information having been supplied to him, he became aware that he had been awarded a total of 56.06 marks in the final process of selection whereas respondent No.3, who was selected and duly appointed, was awarded a total of 58.38 marks. Respondent No.2 was also informed that the selected candidate i.e. respondent No.3 had been awarded 3 marks towards experience. In the light of such information, respondent CWP No.20528 of 2011 (O&M) -3- No.2 filed OA No.652/CH/2009 impugning the selection process primarily on the ground that the marks awarded to respondent No.3 i.e. selected candidate towards experience was not permissible as the same had not been stipulated in the advertisement.
Upon consideration of the entire matter, CAT had set aside the selection holding that the relevant merits of different candidates should not have been arrived at by giving any weightage towards experience. Accordingly, directions had been issued in the impugned order dated 22.02.2011 to prepare a fresh merit list by ignoring the marks obtained by any candidate for experience and to effect appointments thereafter on the basis of such fresh merit list.
Learned counsel for the petitioners has argued that the CAT has erred in passing the impugned order inasmuch as respondent No.2 had not challenged the criteria laid down by the Interview Committee which included the awarding of marks towards experience and as such the entire selection for the post of Pharmacists could not have been set aside. The second limb of argument raised by learned counsel for the petitioners is to the effect that respondent No.2 having applied for appointment to the post of Pharmacist and having participated in the selection process, he would be deemed to have accepted the criteria laid down by the Interview Committee and cannot now turn around and challenge the selection process having not been selected.
As regards the submission made by the learned counsel for the petitioners, we find that respondent no.2 had indeed raised a specific challenge to the selection and appointment of respondent no.3 by raising a specific ground that such selection was contrary to the advertisement dated 30.11.2008 issued by the Chandigarh CWP No.20528 of 2011 (O&M) -4- Administration. Even the argument raised by the learned counsel for the petitioners that respondent no.2 having participated in the process of selection and having been declared unsuccessful, he is estopped from challenging the selection criteria is wholly misconceived in the peculiar facts of the instant case. Respondent No.2 at the time of submitting himself to the process of selection was only aware of the essential qualification and other stipulations for the purpose of selection to the post of Pharmacist as laid down in the advertisement. It was only after the process of selection and upon applying under RTI then he became aware that the Selection Committee had resorted to the grant of weightage towards experience. As such, there was no occasion for respondent no.2 to challenge the criteria of selection, which was never disclosed. We reject the contentions raised by the learned counsel for the petitioner- Chandigarh Administration.
The Constitution of India guarantees an equality of opportunity for the purpose of employment to all citizens. Every person who fulfills the qualification for a post has right to be considered. The fairest method which an employer specially the State Government and its instrumentalities are expected to adopt is that the post should be advertised. All relevant parameters in the nature of essential qualification, experience, weightage for such experience and higher qualification etc. should form a part and parcel of such advertisement. A self contained advertisement is in the nature of representation to the public at large as also to the intending candidates who are willing to subject themselves to a process of selection to a particular post. Such stipulations and parameters laid down in an advertisement are of a binding nature. The claims of all eligible persons who apply in response CWP No.20528 of 2011 (O&M) -5- to such advertisement should be impartially and objectively considered by the competent authority and should finally be appointed in order of merit. Such is the mandate of Article 14 and 16 of the Constitution of India.
As regards the binding effect of an advertisement in relation to a process of direct recruitment the observations of the Hon'ble Supreme Court of India in Pramod K. Pankaj vs. State of Bihar and ors., 2004 (3) SCC 723 to the following effect:
"24. Learned counsel appearing on behalf of the respondents, however, relied upon Ashok Kumar Sharma and others vs. Chander Shekhar and Another, [(1997) 4 SCC 18] : 1997(2) SCT 123 (SC). In that case, this court was considering a matter of direct recruitment. The question which arose for consideration therein was as to whether in the advertisement or notification issued/published calling for applications constituted a representation to the public and the authority issuing it is bound by such representation. Having regard to the importance of adhering to the representation made to the public and the binding nature thereof upon the authorities issuing the same, it was held that no action contrary thereto would be permissible, stating:
"... One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis..."
We find on record at Annexure A-4 the proceedings of the CWP No.20528 of 2011 (O&M) -6- interview held on 15.06.2009 for the 3 posts of Pharmacists (2 posts of General Category and one post of OBC Category) in the Health Department, Chandigarh Administration. The criteria for the selection of Pharmacists is also annexed therewith and the same would clearly reveal that apart from assigning marks for basic qualification and the interview, 15 marks have been earmarked towards experience. Towards such parameter, it is stipulated that the 3 marks shall be awarded for each completed year of experience. Admittedly, such a parameter towards giving weightage for experience was not stipulated in the advertisement dated 30.112008. As per the advertisement, the requirement apart from the essential qualification was to be registered as a Pharmacist with U.T., Chandigarh Pharmacy Council and for possessing a practical training of not less than 500 hrs. spread over a period of not less than 3 months out of which not less than 250 hrs. were to be devoted to actual dispensing of prescription. The advertisement nowhere laid down any weightage to be awarded towards experience. We find that the process of selection and subsequent appointment to the post of Pharmacist in terms of awarding of marks towards experience is flawed.
In the light of the observations made above, we find no basis to interfere with the impugned order dated 22.2.2011 passed by CAT in OA No.652/CH/2009.
Petition being devoid of any merit is dismissed.
(Permod Kohli) (Tejinder Singh Dhindsa)
Judge Judge
November 07, 2011
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