Central Administrative Tribunal - Delhi
Coram vs Union Of India Through Its Secretary on 19 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2053 OF 2014 New Delhi, this the 19th day of December, 2014 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER & HONBLE SHRI UDAY KUMAR VARMA, ADMINISTRATIVE MEMBER Dr.Poonam Gupta, Aged about 38 years, Working as Assistant Professor (Microbiology), Lady Hardinge Medical College, New Delhi 1 .. Applicant (By Advocates: M/s M.L.Chawla & G.D.Chawla) Vs. 1. Union of India through its Secretary, M/o Health & Family Welfare, Government of India, Nirman Bhawan, New Delhi 2. The Chairman, Union Public Service Commission, Dholpur House, New Delhi 110001 3. The Director, Lady Hardinge Medical College, And Associate SSK & KSC Hospitals, New Delhi 110001 . Respondents (By Advocates: M/s Ravinder Aggarwal & Amit Yadav, & M.S.Reen) ORDER Raj Vir Sharma, Member(J):
In this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
8.1 To summon the record for the inordinate delay in verification of essentials certificates on the basis of which the application have be(sic) sought for the post of Specialist Grade II (Microbiology), Non-Teaching to unearth the truth beneath;
8.2 To command the respondents to keep one post reserved for the applicant in the event of success in the O.A.;
8.3 To command the respondents to permit the applicant to appear in the interview provisionally which is likely to be held shortly so as to avoid any irreparable loss which would be suffered by the applicant;
8.4 To allow this OA with cost, because the applicant has been dragged into avoidable litigation;
8.5 To pass any other order or orders, direction or directions as deemed fit in the facts and circumstances of the case so as to meet the ends of justice.
2. Brief facts of the applicants case, as projected in the O.A., are as follows:
2.1 The applicant is presently working as Assistant Professor (Microbiology) in the Lady Hardinge Medical College, New Delhi. She belongs to General Category. In response to the Advertisement No.12/2013 published in Employment News dated 24-30 August, 2013(Annexure A/1), she, having possessed the requisite qualification and experience, made online application on 8.9.2013(Annexure A/2) for the post of Specialist Grade II (Microbiology) Non-Teaching. The qualifications essential for the post of Specialist Grade II (Microbiology), Non-Teaching, were delineated in the advertisement as follows:
QUALIFICATIONS: ESSENTIAL: A.EDUCATIONAL:
(i) An MBBS qualification recognized by Medical Council of India included in the first or Second Schedule or Part II of the Third Schedule (other than licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of Educational Qualifications included in Part II of the third Schedule should also fulfill the conditions stipulated in sub-section (3) of section (13) of the Indian Medical Council Act, 1956.
(ii) Post Graduate degree/Diploma in the concerned specialty mentioned in Section-A or Schedule-B in the Schedule VI, i.e., MD (Bacteriology), MD (Microbiology), MD (Bact. with Pathology), M.Sc.(Microbiology), M.Sc. (Bacteriology), D (Bact.), D.P.B. or equivalent. (For equivalence of DNB qualifications with MD/MS or DM/M.Ch., the candidate holding DNB qualifications would need to get their qualification verified by NBE as to whether it is as per the requirement of the Gazette notification No.MCI-12(2)2010-Med.Misc.dated 11.6.2012 and produce such verification certificate at the time of interview).
B.EXPERIENCE: Three years experience in the concerned specialty (i.e. Microbiology) after requisite post graduate degree or five years experience after obtaining Post-graduate diploma. On 3.6.2014, she sent copies of her Degree Certificate of M.D.(Microbiology), which certificate she had obtained in the year 2009, and Experience Certificate, along with a representation [Annexure A/2(a)], to the Secretary, UPSC.
2.2 Despite submission of the online application on 8.9.2013, and the copies of the Degree Certificate of MD (Microbiology) and Experience Certificate on 3.6.2014 by her, no letter was received by the applicant from the UPSC to send the self-attested copies of the documents, although such letters were received by other candidates. Copy of one such letter dated 30.5.2014 received by Dr.Neelam Gulati from the UPSC is filed as Annexure A/4. She was also not called to appear at the interview.
2.3 Hence, she filed the present O.A. on 12.6.2014 praying for the relief(s) as referred to earlier.
3. Opposing the O.A, respondent No.1-Union of India has filed a counter reply wherein it is, inter alia, stated that requisition was sent to the UPSC for recruitment of 23 Specialists Grade II in Microbiology in the Non-Teaching Specialist Sub-Cadre of the Central Health Service, vide Ministrys letter dated 16.7.2013. The minimum educational and other qualifications for recruitment to the said post as prescribed in the Recruitment Rules (Annexure R/1) were mentioned in the recruitment notice/advertisement. It is also stated that the procedure for short-listing of the candidates was adopted by the UPSC. The applicant has not agitated her grievance relating to non-receipt of letter to send the self-attested photocopies of the requisite documents. The applicant having not exhausted the alternative remedy of making a representation as to redressal of her grievance, if any, the OA filed by her is hit by Section 20 of the Administrative Tribunals Act, 1985. It is further stated that no cause of action has accrued to the applicant to file the present O.A. In view of the above, the respondent No.1 has prayed for dismissal of the O.A.
4. Respondent no.2-Union Public Service Commission, by filing a separate counter reply, has resisted the claim made by the applicant in the O.A. It is stated by respondent no.2 that the O.A. is based on false averments, surmises and conjectures. The advertisement was issued for recruitment to 23 posts (03-SC, 02-ST, 08-OBC and 10-UR) of Specialist Grade II (Microbiology) in the Central Health Service, Non-Teaching Specialist Sub Cadre Group A Gazetted, Non-Ministerial, in PB 3 (Rs.15600-39100) plus Grade Pay Rs.6600/- with NPA as admissible under the Rules. A total number of 239 candidates (30-SC, 08-ST, 43-OBC and 158-Gen) had made online applications. After scrutiny of the applications, based on the minimum eligibility criteria for each category of candidates, 76 candidates (07-SC, 03-ST, 03-OBC and 63 General), who were found suitable for the post, were short-listed to be called for the interview. After the introduction of Online Recruitment Application (ORA), the preliminary scrutiny of online applications was done on the basis of information/particulars filled in the online applications by the candidates. Applications of candidates, who did not claim to have possessed the minimum essential qualification in their online applications, were rejected straightaway. In the advertisement published in the Employment News, it was prominently mentioned that the candidates should read the instructions carefully before filing the online application. A warning was also given in the advertisement, vide paragraph 8(b), which reads as under:
Warning CANDIDATES WILL BE SHORTLISTED FOR INTERVIEW ON THE BASIS OF THE INFORMATION PROVIDED BY THEM INTHEIR ONLINE APPLICATION THEY MUST ENSURE THAT SUCH INFORMATION IS TRUE. IF AT ANY SUBSEQUENT STAGE OR AT THE TIME OF INTERVIEW ANY INFORMATION GIVEN BY THEM OR ANY CLAIM MADE BY THEM IN THEIR ONLINE APPLICATION IS FOUND TO BE FALSE, THEIR CANDIDATURE WILL BE LIABLE TO BE REJECTED AND THEY MAY ALSO BE DEBARRED EITHER PERMANENTLY OR FOR A SPECIFIED PERIOD BY THE:
COMMISSION FROM ANY EXAMINATION OR SELECTION HELD BY THEM CENTRAL GOVERNMENT FROM ANY EMPLOYMENT UNDER THEM. 4.1 It is stated by respondent no.1 that the applicants application was rejected because in her online application (Annexure A/2 to the O.A. and Annexure R/1 to the counter reply) she did not mention to have possessed the essential qualification for the post.
5. The applicant has filed a rejoinder reply controverting the stand taken by respondent No.2-UPSC.
6. The Tribunal, vide interim order dated 14.8.2014, directed the respondent-UPSC to allow the applicant to provisionally appear at the interview held on 20.8.2014 and to keep the applicants result in sealed cover until further direction or the matter is finally decided by the Tribunal. In compliance with the Tribunals interim order, the respondent-UPSC also produced the result of the applicants interview in sealed cover on 17.11.2014. The Tribunal found that the applicant was recommended for appointment to the post in question.
7. We have perused the records and heard the learned counsel appearing for the parties.
8. The learned counsel appearing for the applicant submitted that as the applicant had, in fact, possessed the essential qualification of Degree of MD (Microbiology) in the year 2009 and intimated the said fact to the respondent-UPSC, vide her representation dated 3.6.2014 along with copy of the certificate of Degree of MD (Microbiology), the rejection of her online application is illegal and arbitrary. The learned counsel also submitted that pursuant to the interim order passed by the Tribunal, the applicant appeared at the interview. As per the result of her interview, the applicant has also been recommended for appointment to the post in question. Unless the Tribunal directs her application and candidature to be accepted by the UPSC, the applicant would not only be gravely prejudiced, but also would suffer from irreparable loss and irremediable damages because of the impugned decision of the respondent-UPSC. In support of his contentions, the learned counsel appearing for the applicant placed reliance on the decision of the Tribunal in Ms.Hem Chaudhary v. Govt. of NCT of Delhi and others, OA No.2838 of 2013, decided on 3.11.2014, and the decision of the Honble High Court of Delhi in Amit Pal v. Union Public Service Commission, W.P. ( C ) No. 8393 of 2014, decided on 8.12.2014.
9. Per contra, the learned counsel appearing for the respondents submitted that the applicants online application was rightly rejected by the UPSC. Since the applicant did not mention the essential qualification in her online application, her application was rejected. The short-listing of candidates was done by the UPSC on the basis of the information furnished by the candidates in their online applications. The interim order passed by the Tribunal directing the respondent-UPSC to allow the applicant to provisionally appear at the interview could not, in law, revive her application which was rejected by the UPSC in accordance with the terms and conditions of the advertisement/recruitment notice. Further, the applicants interview and her result of the interview, being subject to the outcome of the present proceedings, would not entitle her to the relief sought in the O.A. It was also submitted by the learned counsel that the applicant cannot be allowed to enure the benefit of the interim order which is always subject to the final result of the proceedings. In support of his contentions, the learned counsel appearing for the respondents relied on the decision of the Honble Supreme Court in Secretary, Union Public Service Commission and another v. S.Krishna Chaitanya, (2011) 14 SCC 227; the decision of the Honble High Court of Delhi in Sachin Kumar Rana v. Union of India and others, W.P. ( C ) No. 7198 of 2014, decided on 17.10.2014; and the decisions of the Tribunal in Shri N.K.Joshi v. Union Public Service Commission, O.A.No.33/2011, decided on 11.1.2011; Gudipati Gayatri Kashyap, etc., v. The Secretary, Union Public Service Commission, etc., OA No.2767 of 2014 and five connected O.As., decided on 21.11.2014; and the decision of the Honble High Court of Delhi in W.P. ( C ) No. 8319 of 2014 and connected W.P., decided on 2811.2014, Satish Kumar v. Union Public Service Commission and another.
10. Let us first deal with the decisions cited by the learned counsel appearing for the applicant:
(i) Ms.Hem Chaudhary v. Govt. of NCT of Delhi and others, OA No.2838 of 2013, decided on 3.11.2014, wherein a coordinate Bench of the Tribunal held thus:
5. As can be seen from the application form, copy of which has been placed on record by the respondent as enclosure to its reply, in column 11 thereof the candidates were required to give details of their educational/professional qualifications and not of an open eligibility test. The CTET is not preceded by any organized educational/academic or professional course but is open eligibility test held by the CBSE, thus mere non-disclosure of the CTET Part I certificate in column no.11 could be no ground for cancellation of the candidature of the applicant. It is seen from the certificates placed on record that the applicant had qualified CTET Part I much before the last date of submission of application form for the post in question. In the circumstances, we find no justification for cancellation of her candidature.
6. In view of the aforementioned, the Original Application is disposed of with direction to the respondents to examine whether on the basis of CTET Part I passed by her the applicant acquire eligibility for the post in question and if she is considered eligible process her candidature in accordance with prescribed procedure. No costs.
(ii) Amit Pal v. Union Public Service Commission, W.P.( C ) No.8393 of 2014, decided on 8.12.2014, the petitioner submitted his online application on 30.5.2014 just six hours before the beginning of the time granted by the UPSC for making online application. In conformity with the terms and conditions governing such online applications, the petitioner apparently filled both parts of the form, uploaded the relevant annexure, including photograph, and also made online payment of examination fee of Rs.100/- which was immediately debited from his bank account. His application form was also apparently accepted online and acknowledged on 30.5.2014 itself. When the petitioner was not treated as a candidate for the examination, he filed an OA before the Tribunal. The Tribunal held that the applicant had applied for the examination on a date when no notice inviting applications existed. No right could, therefore, accrue to him on the basis of non-existent advertisement because of which his claim of having filed a valid application successfully could not be accepted. Mere acceptance of examination fee and other documents by the Respondent-UPSC would in no way entitle the applicant to be treated as having validly applied for the examination. Accordingly, the Tribunal dismissed the O.A. Being aggrieved thereby, the applicant filed writ petition before the Honble High Court of Delhi. While allowing the writ petition and setting aside the Tribunals order, the Honble High Court of Delhi held thus:
10. The UPSC neither intimated to the petitioner that the application accepted from him during the trial run process did not constitute a real time application and that he was not a candidate, nor during the period, i.e., 31.05.2014 to 30.06.2014, that his application submitted online and the Registration ID issued to him, were invalid. The petitioner was intimated that he was not a candidate only in response to his representation for issuance of Admit Card on 25.07.2014. From the above admitted facts, what is significant is that even though the terms of advertisement were clear, in that candidates had to apply on or after 341.5.2014, the UPSC accepted the petitioners application, the fee and issued the acknowledgement during the conduct of a trial run. There appears to have been a manifest and apparent design defect in this trial run, because it permitted the petitioner to, in fact, apply online and successfully secure a Registration ID. The online payment too was made and accepted. The only ground on which the UPSC now contends that the petitioner was aware of his rejection of candidature, was refund of online payment of Rs.100/-. The UPSC also has not informed the petitioner, in any form, note or intimation between 31.5.2014 and 30.6.2014 that online acceptance was in the course of trial run and that he was not a candidate. In these circumstances, we hold that in the absence of the UPSCs intimation of:
(a) the fact that a trial run was being conducted and that applications, if accepted, by inadvertence, would be treated as invalid;
(b) the reversal of the online payment by the bank;
(c ) the absence of any formal intimation during the period 31.5.2014 and 3-0.06.2014;
the petitioner was, in fact, prejudiced. Had the petitioner been made aware consciously by the UPSC, during the period it was possible for him to apply a second time (given that the terms of the advertisement itself, permitted candidates to fill multiple applications) he would not have been so prejudiced. This instance may be a one-off, unusual case where due to technical drawbacks and, perhaps, oversight on the part of the UPSC and NIC, the application was accepted. Nevertheless, the fact remained that the magnitude of impact upon the petitioner cannot be understated. If the UPSCs argument that its rigid timelines are strictly enforceable is to be accepted, the petitioner would lose all further chance of competing in CSE-2014. In these circumstances, the Court is of the opinion that although this might be a singular and exceptional instance, the overall circumstances do indicate arbitrariness.
11. Now we would deal with the decisions cited by the learned counsel appearing for the respondents:
(i) In S.Krishna Chaitanyas case (supra), the Honble Supreme Court held that the negligence on the part of the respondent-candidate has resulted into his sufferance and he himself is only to be blamed for the events.
(ii) In Sachin Kumar Ranas case (supra), wherein a question similar to the one involved in the present O.A. was considered, the Honble High Court of Delhi held that considering the fact that the petitioner failed to complete the application form either due to his carelessness, ignorance or negligence, he has not made out any case for exercise of the writ jurisdiction of the Court.
(iii) In Shri N.K.Joshis case (supra), the Tribunal held thus:
The Respondent, UPSC has to conduct very large number of examinations, in which millions of candidates appear. It is, therefore, necessary for them to insist that the rules regarding submission of application forms, including their submissions in time, should be followed strictly. If it is not insisted upon, it can lead to sheer administrative chaos. The Tribunal would normally not interfere in such a matter, unless it is demonstrated unambiguously and on the basis of solid facts that the respondent had indulged in serious irregularities. The Applicant has merely given a fanciful account of events without any basis of facts.
(iv) In Gudipati Gayatri Kashyaps case (supra), the Tribunal, after finding that the applicants had not completed and finally submitted Part II of the online applications, held that they could not be treated as candidates for the examination. Accordingly, the Tribunal declined to interfere with the decision of the UPSC holding the applicants as not candidates for the examination. The Honble High Court of Delhi, upholding the said decision of the Tribunal, dismissed W.P. ( C ) Nos.8319 of 2014 and another connected writ petition, decided on 28.11.2014 (Satish Kumar, etc. v. Union Public Service Commission and another, etc.) filed by the applicant-petitioners.
12. Now coming to the facts of the instant case, in the advertisement No.12/2013, the essential qualifications for the post of Specialist Grade II (Microbiology) Non-Teaching, were mentioned as follows:
QUALIFICATIONS: ESSENTIAL: A.EDUCATIONAL:
(i) An MBBS qualification recognized by Medical Council of India included in the first or Second Schedule or Part II of the Third Schedule (other than licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of Educational Qualifications included in Part II of the third Schedule should also fulfill the conditions stipulated in sub-section (3) of section (13) of the Indian Medical Council Act, 1956.
(ii) Post Graduate degree/Diploma in the concerned specialty mentioned in Section-A or Schedule-B in the Schedule VI, i.e., MD (Bacteriology), MD (Microbiology), MD (Bact. with Pathology), M.Sc.(Microbiology), M.Sc. (Bacteriology), D (Bact.), D.P.B. or equivalent. (For equivalence of DNB qualifications with MD/MS or DM/M.Ch., the candidate holding DNB qualifications would need to get their qualification verified by NBE as to whether it is as per the requirement of the Gazette notification No.MCI-12(2)2010-Med.Misc.dated 11.6.2012 and produce such verification certificate at the time of interview).
B.EXPERIENCE: Three years experience in the concerned specialty (i.e. Microbiology) after requisite post graduate degree or five years experience after obtaining Post-graduate diploma. The applicants were advised to fill in all the particulars in the online recruitment applications carefully as submission of wrong information might lead to rejection through computer based short-listing, besides debarment by the Commission from any examination or selection held by them. Warning was also given to the candidates that the candidates would be short-listed for interview on the basis of information provided by them in their online applications; that they must ensure that such information was true; and that if at any subsequent stage or at the time of interview any information given by them or any claim made by them in their online applications was found to be false, their candidature would be liable to be rejected and they might also be debarred either permanently or for a specified period by the Commission from any examination or selection held by them and by the Central Government from any employment under them. After scrutiny of the online applications of total number of 239 candidates (30-SC, 08-ST, 43-OBC and 158-General) on the basis of the minimum eligibility criteria mentioned in the advertisement/recruitment notice, the UPSC short-listed 76 (07-SC, 03-ST, 03-OBC and 63 General) candidates to be called for the interview.
13. From the copy of the applicants online application (Annexure A/2 to the O.A.), it transpires that the applicant in her online application, under the heading Educational Qualification(s), mentioned as follows:
Educational Qualification(s) Qualification Type Degree Subject Qualification level Specialization (Mandatory Subject University / College Duration From To Date of Notification of Result/Issue of Final Marksheet Division/Class Result Type/Result Score Date of Degree Essential MBBS MBBS Graduation Medical/ Dental/ Vet/AYUSH Himachal Pradesh University Shimla/Indira Gandhi Medical College, Shimla Aug 1997 May 2002
24.-05-2002 1st Percentage / 62 23-11-2003 It is thus clear that the applicant did not mention in her online application to have possessed the essential qualification (ii) Post Graduate Degree, i.e., MD (Microbiology) and other details, like qualification level, the name of the University/College, duration of the course, date of notification of result/issue of final mark sheet, division/class assigned to her in the Degree Examination, percentage of marks scored by her, and the date of Degree, under the heading Educational Qualification(s). The closing date for submission of online applications was 12.09.2013. The letters were issued to the candidates by the UPSC on or about 30.5.2014 asking them to send the self-attested copies of the documents to the UPSC. The applicant, perhaps, after coming to know that candidates were issued letters on or about 30.5.2014 to send the self-attested photocopies of documents in support of the particulars furnished in the online applications, and that she did not fill the particulars regarding her Degree qualification, i.e, MD (Microbiology) in her online application, she made a representation dated 3.6.2014, along with the copy of the Degree Certificate of MD (Microbiology), to the Secretary, UPSC. As, admittedly, the applicant did not mention her essential qualification, i.e., MD (Microbiology) in the online application, and the UPSC short-listed the candidates, who were found to have submitted the online applications complete in all respects and mentioning the essential qualification with particulars thereof and were also found eligible on the basis of the information provided by them in the online applications to be called to appear for the interview, there was no scope for the UPSC to accept the Degree Certificate of MD (Microbiology) sent by the applicant along with her representation dated 3.6.2014 and entertain her application. Acceptance of copy of the Degree Certificate of MD (Microbiology) of the applicant by the UPSC, after short-listing of candidates was done, would not only have breached the terms and conditions of the advertisement/recruitment notice, but also given rise to similar claims by other candidates whose online applications were rejected by the UPSC, while short-listing the candidates, because of their not mentioning the essential qualifications and particulars thereof in the online applications, besides creating sheer administrative chaos and resulting in legal complications in the entire gamut of selection process. Keeping in mind the ratio of the decisions in S.Krishna Chaitanyas case(supra), Sachin Kumar Ranas case(supra), Shri N.K.Joshis case (supra), and Gudipati Gayatri Kashyaps case (supra, and after having given our anxious consideration to the facts and circumstances of the case and the rival contentions raised by the learned counsel appearing for the parties, we find no infirmity in the decision of the respondent-UPSC rejecting the application made by the applicant because of her non-mentioning the essential qualification in the online application.
14. In Amit Pals case, the applicants online application, which was made by him just six hours before the time of commencement of submission of online applications, was accepted while the programme of online recruitment application was being run on trial basis, and the UPSC neither intimated the applicant that the application accepted from him during the trial run process did not constitute a real time application and that he was not a candidate; and that his application submitted online and the Registration ID issued to him, were invalid. In view of this, the Honble High Court of Delhi, while allowing the writ petition and setting aside the Tribunals order, held that that the applicant was declared to be a candidate for the CSE 2014 and was directed to be allowed to participate in the examination scheduled to be held on 14.12.2014. In Ms.Hem Chaudharys case (supra), the Coordinate Bench of the Tribunal did not decide the issue as to whether, or not, application made by an applicant could be rejected for his/her not having mentioned the essential qualification in the application made for the post in accordance with the terms and conditions of the advertisement/recruitment notice. In the said case, the Tribunal found that in their applications candidates were required to give details of their educational/professional qualifications and not of an open eligibility test, and that the CTET being an open eligibility test held by CBSE, the mere non-disclosure of the CTET Part I Certificate in the application could be no ground for cancellation of the candidature of the applicant. Accordingly, the Tribunal found no justification for cancellation of her candidature and directed the respondents to examine whether on the basis of CTET Part I passed by her the applicant acquired eligibility for the post in question and if she is considered eligible, process her candidature in accordance with the prescribed procedure. In the instant case, the applicants online application was rejected because of her not having mentioned the essential qualification, i.e., MD (Microbiology) and other relevant particulars in respect of the said essential qualification under the heading Educational Qualifications in the online application. The facts and circumstances of Amit Pals case (supra) and Ms.Hem Chaudharys case (supra, cited by the learned counsel appearing for the applicant and the issues raised and decided therein, were different from those of the instant case. Therefore, the said decisions can be of no help to the case of the applicant.
15. In the light of the above discussions, we hold that the applicant has not been able to make out a case for the relief(s) claimed by her in the O.A. As a consequence, the OA being devoid of merit is liable to be dismissed.
16. In the result, the O.A. is dismissed. The interim orders stand vacated. No costs.
(UDAY KUMAR VARMA) (RAJ VIR SHARMA) ADMINISTRATIVE MEMBER JUDICIAL MEMBER AN