Central Administrative Tribunal - Delhi
Dr Shamim vs Union Public Service Commission on 21 October, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1301/2019
New Delhi, this the 21st day of October, 2019
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Dr. Shamim (Aged about 29 years) (Group 'A'),
S/o Abdul Mobin,
R/o D-2/52, Main service road,
4th Pusta, Sonia Vihar,
Delhi - 110094.
M:-9971817508
Recruitment for the post of Astt. Professor (Unani).
...Applicant
(By Advocate: Ms. Harvinder Oberoi and Mr. G. D. Chawla)
Versus
1. Union Public Service Commission,
Through its Chairman,
Dholpur House,
Shahjahan Road, New Delhi - 110069.
2. Govt. of NCT of Delhi,
Through Secretary,
Department of Health and Family Welfare,
Directorate of ISM&H.
3. Central Council of Indian Medicine,
61-65, Institutional Area, Janakpuri D-Blk,
New Delhi - 110058.
4. Principal/HOD,
A&U Tibbia College & Hospital, GNCTD,
Ajmal Khan Road,
Karol Bagh, New Delhi - 110005.
5. Syed Farhan Hussain (Selected candidate Sl No. 2)
2
OA No. 1301/2019
6. Unknown,
(Reserve List candidate: at Sl. No. 1 of the reserve
list)
7. Seema Rani,
(Reserve List Candidate: at Sl. No. 2 of the reserve
list)
...Respondents
(By Advocate: Mr. Naresh Kaushik and Ms. Akshita Rao, Mr.
Kapil Agnihotri, Mr. U. S. Chaudhary and Mr. Saurabh Ahuja)
O R D E R (ORAL)
Mohd. Jamshed, Member (A):-
Vide advertisement No. 10/2018, issued by Union Public Service Commission (UPSC), applications were invited for 02 (UR) posts of Assistant Professor (Unani) DawasaziMurakkabat/Ilmus/Saidla, A&U Tibbia College & Hospital, Department of Health and Family Welfare, Govt. of NCT of Delhi. As per the advertisement the last date of submission of online forms was 14.06.2018. The applicant also applied for the same and was shortlisted for interview. Twenty two persons were called for the interview by UPSC, which took place on 14th and 15th March, 2019. Two candidates were selected and three were placed in the Reserve List. The applicant was placed at No. 03 in the Reserve List.
2. The applicant states that the selected candidate at Sl. No. 02 and candidates at Sl. No. 01 & 02 of the Reserve List do not possess requisite qualifications as on the last date of submission of the application i.e. 14.06.2018. He represented to the first 3 OA No. 1301/2019 respondent about this, even before the interviews were held. The representation was rejected on 18.01.2019. He contends that the selection of candidates who were ineligible as on last date of submission of applications is illegal and the same be set aside.
3. The applicant filed this OA for quashing and setting aside of letter dated 18.01.2019 issued by the first Respondent and to direct the Respondents to strictly follow the terms and conditions as laid down, in advertisement No. 10/2018 and, accordingly, prepare a revised list by ignoring the ineligible candidates. He has also challenged the letter dated 26.04.2018 issued by the CCIM to Ministry of Ayush as misdirected, illegal and arbitrary.
4. The applicant contends that the selected candidates, i.e. Respondent No. 05 to 07 in the OA, did not have Post Graduate Degree in the subject/speciality from an Institute included in the Schedule to the Indian medicine Central Council Act, 1970, as on the stipulated date.
5. It is further stated that National Institute of Unani Medicine, Bangalore has been included in the Gazette Notification issued by Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy under Section 4 of the India Medicine Central Council Act, 1970 only w.e.f. 25.07.2018; and that this is the institute from where the selected candidate No. 02 and those placed in the Reserve List at Sl. No. 01 and 02 had obtained their degrees. He submits that the Gazetted Notification in this regard is 4 OA No. 1301/2019 of 25.07.2018, whereas the last date of submission of application form was 14.06.2018, and accordingly, respondents 05 to 07 were not eligible to apply.
6. Respondents have filed counter affidavits opposing the OA. It is stated that the Commission called 22 candidates for interview, which were held on 14th & 15th March, 2019 and final recommendation letter was issued on 02.05.2019. It is submitted that although the last date of submission of applications was 14.06.2018, the MD (Unani) degree from National Institute of Unani Medicine (NIUM), Bangalore was included in the schedule on 25.07.2018, with retrospective effect from 2008 onwards. According to them, the process for such an inclusion had already started by Central Council of Indian Medicine (CCIM) vide their letter dated 26.04.2018 and non consideration of candidates, who had obtained their Post Graduate Degree from the above referred Institute, would have resulted in great injustice.
7. Reliance is placed by the learned counsel for the applicant on the judgment of Hon'ble Apex Court in Rakesh Kumar Sharma Vs. State (NCT of Delhi) and Ors. (2013) 11 SCC 58, The State of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr. Civil Appeal No. 6669 of 2019, Hon'ble Allahabad High Court judgment in Gaurav Sharma and Ors. Vs. State of U.P. and Ors. (AIR2017AII116), Hon'ble Jharkhand High Court in Thakur Das Mahato & Anr Vs. State of Jharkhand & Ors. 5 OA No. 1301/2019 W.P. (S) No. 5722 of 2009 and this Tribunal judgment in OA No. 612/2019.
8. We heard Ms. Harvinder Oberoi with Mr. G. D. Chawla, learned counsel for the applicant and Mr. Naresh Kaushik and Ms. Akshita Rao, Mr. Kapil Agnihotri, Mr. U. S. Chaudhary and Mr. Saurabh Ahuja, learned counsel for the respondents.
9. The UPSC vide its advertisement No. 10/2018, invited applications for 02 (UR) posts of Assistant Professor (Unani)Dawasazi/Murakkabat/Ilmus/Saidla, A&U Tibbia College & Hospital, Department of Health and Family Welfare, Govt. of NCT of Delhi, prescribing the following educational qualifications:-
"QUALIFICATIONS: ESSENTIAL: (A) EDUCATIONAL:
(i) Degree in Unani Medicine from a University established by Law or a Statutory Board/Faculty/Examining Body of Indian Medicine or equivalent as recognised under Indian Medicine Central Council Act, 1970. (ii) A Post Graduate Degree in the subject/speciality concerned included in the Schedule to the Indian Medicine Central Council Act, 1970."
10. The educational qualification clearly mentions a Post Graduate Degree in the subject/speciality concerned included in the Schedule to the Indian Medicine Central Council Act, 1970. The closing date for submission of the online application was 14.06.2018. It was also indicated in the advertisement that "date for determining the eligibility of all candidates in every aspect shall be prescribed closing date for submission of online recruitment application". The applicant also applied, in response 6 OA No. 1301/2019 to the advertisement. The UPSC shortlisted 22 candidates for interview on 14th and 15th March, 2019. The result was made available on the website. The UPSC recommended two selected candidates namely (i) Mr. Mohd. Nauman Saleem, who secured 72 marks and (ii) Mr. S. Farhan Husain, who secured 70 marks. The applicant obtained 63 marks and has been kept at Sl. No. 03 of the Reserve List. The applicant contends that on verification of the list of shortlisted candidates for the interview, he came to know that certain candidates have not fulfilled the essential qualification as on the last date of submitting the online form i.e. 14.06.2018. He submitted a representation dated 17.12.2018 addressed to the first Respondent. In the representation, the applicant had mentioned that some candidates are ineligible as they had obtained their degrees from NIUM, Bangalore, which has been notified in the Gazette Notification only on 25.07.2018, i.e , after the last date of submission of application and, therefore, such candidates are ineligible. The respondents rejected the representation of the applicant vide their letter dated 18.01.2019, stating the following:-
"I am directed to refer to your representation dated 18/12/2018 on the above mentioned subject and to say that the candidate who fulfil the eligibility criteria/shortlisting criteria have been shortlisted to be called for interview.
2. As regards, short listing of candidates from National Institute of Unani Medicine, Rajiv Gandhi University of Health Science, Bangalore, they have been shortlisted based on the Gazette Notification dated 25/07/2018, as per which their PG 7 OA No. 1301/2019 degree has been included in the schedule to the Indian Medicine Central Council Act, 1970 retrospectively w.e.f. 2011 onwards. The Central Council of Indian Medicine had also sent its recommendation in favour of the said institution on 26/04/2018 to Ministry of Ayush for continuation of MD/MS (Unani) qualification for inclusion in the schedule with effect from 2011 onwards."
11. The Gazette Notification of 25.07.2018, reads as under:-
MINISTRY OF AYURVEDA, YOGA AND NATUROPATHY, UNANI, SIDDHA AND HOMEOPATHY NOTIFICATION New Delhi, the 25th July, 2018 S.O. 3655(E).- In exercise of the powers conferred by sub- section (2) of section 14 of the Indian Medicine Central Council Act, 1970 (48 of 1970), the Central Government, after consulting the Central Council of India Medicine, hereby makes the following further amendments in the Second Schedule to the said Act, namely:-
In the said Second Schedule, in Part II relating to "Unani", under the heading "Karnataka", against serial number 15B, for the entries in Column 4, the following entries shall be substituted, namely:-1 2 3 4
"From 2008 onwards, if granted to the students admitted with permission of the Government of India in following college, namely:-
National Institute of Unani Medicine, Kottige Palya, 8 OA No. 1301/2019 Magadi Main Road, Bangalore-
560091."
12. It is thus evident that in terms of the notification issued by Ministry of Ayurveda, Yoga and Naturapathy, Unani, Siddha and Homoeopathy in exercise of the powers conferred by sub-section (2) of section 14 of the Indian Medicine Central Council Act, 1970 (48 of 1970), the Central Government, after consulting the Central Council of Indian Medicine, has made amendment to the Second Schedule of the said act by including NIUM from 2008 onwards. It is thus undisputed that by 14.06.2018, the last date of submission of the applications, the notification for including this Institute had not been issued.
13. The respondents stated that they had recommended 02 candidates as finally selected and the user department has issued offer of appointment to Respondent No. 05 for the post of Assistant Professor (Unani). However, in view of Tribunal's order dated 27.08.2019, joining process has been deferred until further orders.
14. The UPSC has relied upon the fact that recognition of medical qualification granted by certain medical institutions in India is done in terms of Section 14 of the Indian Medicine 9 OA No. 1301/2019 Central Council Act, 1970 and is considered as continuation of the recognition. The provision reads as under:-
"14. Recognition of medical qualifications granted by certain medical institutions in India:-
(1) The medical qualifications granted by any University, Board or other medical institutions in India which are included in the Second Schedule shall be recognized medical qualifications for the purpose of this Act.
(2) Any University, Board or other medical institution in India which grants a medical qualification not included in the Second Schedule may apply to the Central Government to have any such qualification recognized, and the Central Government, after consulting the Central Council, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification declaring that it shall be recognized medical qualification only when granted after a specified date."
15. It is also stated that the NIUM was recognised in 2008 and included in the 2nd Schedule to the Indian Medicine Central Council Act, 1970 w.e.f. 2008 till 2011 and thereafter the Secretary CCIM addressed a letter to Ministry of Ayush regarding continuation of inclusion of MD (Unani) from the year 2011 upto 2020-2021 in the 2nd Schedule to the IMCC, Act, 1970. The Ministry of Ayush included that very course in the 2nd Schedule from 2008 vide their notification 25.07.2018. Issuance of notification through gazette makes it amply clear that such a recognition was not available prior to the last date of submission 10 OA No. 1301/2019 of application form. First respondent's assertion that the process of recognition has started on 26.04.2018 itself when the CCIM recommend to the Ministry is not tenable since the final notification was issued only on 25.07.2018.
16. The sanctity of recruitment conditions laid down and legality of such provisions like closing date and qualification etc. has been adjudicated very often and the law in this regard is fairly settled. In the case of Rakesh Kumar Sharma Vs. State (NCT of Delhi) and Others, (2013) 11 SCC 58, the Hon'ble Supreme Court has held as under:-
"23. There is no obligation on the court to protect an illegal appointment. The extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance.
24. The appeal is devoid of any merit and does not present special features warranting any interference by this Court. The appeal is accordingly dismissed."
It has been made very clear that no benefit can be granted to the candidates who were not eligible as per Recruitment Rules/Advertisment as the same would deprive a large number of similarly placed candidates who may not have applied in the selection process by considering them as ineligible. It was ruled that usurpation of a post by an ineligible candidate, in any circumstance, is impermissible.
11OA No. 1301/2019
17. In the case of The state of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr., Civil Appeal No. 6669/2019 arising out of SLP(C) No.14093/2019 decided on 28.08.2019, the Hon'ble Supreme Court has held as under:-
"12. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The other submission made by Ms. Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us.
18. In the case of Gujarat Electricity Board Vs. Girdharlal Motilal and Anr.,1969 AIR 267 the Hon'ble Supreme Court has held as under:-
"6....In advancing these arguments, the learned Attorney-General overlooked the fact that notice required by Section 6(1) is not a notice of an action to be taken or merely a procedural step. It is a mode of exercising the power conferred on the State Electricity Board by the exercise of which the property rights of the licensee can be affected. Section 6 (i) confers power on the State Electricity Board to take away the property of the licensee. Such a power must be exercised strictly in accordance with law. The legislature has prescribed the manner of its exercise. It must exercise in that manner and in no other way...."
19. The ratio of these judgments, therefore, is very clear that once certain conditions have been specified in the advertisement they must be strictly adhered to by the respondents and strictly followed by the candidates. In this case, it was categorically mentioned in the advertisement that Post Graduate degree in the subject/speciality concerned included in the Schedule to the Indian Medicine Central Council Act, 1970 was essential educational 12 OA No. 1301/2019 qualification. The applicant contends that one of the candidates selected by UPSC did not have such a degree and that the gazette notification regarding that came after the cut off date, making such candidates ineligible for this selection. Various judgments quoted above clearly establish the sanctity of the conditions prescribed in the advertisement and also to the injustice that many candidates may suffer who abide by the conditions laid down and did not participate in the selection for want of eligibility. It is expected from any recruiting agency and in the instant case, the UPSC, that such verification and checks should be conducted thoroughly so as not to leave any scope of doubt and to provide level playing field to every candidate.
20. In view of the above discussion, the OA is allowed. The Selection of respondent No. 5 is set aside as the institution from which he studied the qualifying examination was not included in the II Schedule appended to the Indian Medicine Council Act, 1970, on the last date stipulated for submission of the application. The respondents are directed to consider the candidature of the respondents 6, 7 and the applicant in that order for selection against the vacancy caused on account of the setting aside of the selection of the 5th Respondent by applying the same yard stick. 13 OA No. 1301/2019 There shall be no order as to costs.
(Mohd. Jamshed) (Justice L. Narasimha Reddy) Member (A) Chairman /ankit/