Central Administrative Tribunal - Delhi
Dr. Sandeep Sachdeva vs Union Public Service Commission on 29 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.2112/2014 Reserved on 25.05.2015 Pronounced on 29.05.2015 HONBLE SHRI ASHOK KUMAR, MEMBER (A) HONBLE SHRI RAJ VIR SHARMA, MEMBER (J) Dr. Sandeep Sachdeva, S/o Dr. Tilak Raj Sachdeva, Aged 40 years, Assistant Professor Department of Community Medicine, Post-graduate Institute of Medical Education and Research, Dr. R.M.L. Hospital, New Delhi, And resident of: D-I/1395, Vasant Kunj New Delhi-110070. Applicant (By Advocate: Shri A.K. Aggarwal) VERSUS 1. Union Public Service Commission (through its Chairman) Dholpur House, Shahjahan Road, New Delhi. 2. Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi-110001. .Respondents (By Advocate: Shri Ravinder Kumar Sharma and Shri R.N. Singh) :ORDER: BY SHRI ASHOK KUMAR, MEMBER (A):
Applicant has impugned verbal communication dated 18.06.2014, made to him at the Official Facilitation Desk of Respondent no.1, conveying that his application for the post of Assistant Professor (Preventive & Social Medicine) (P&SM) advertised as item No.17 in advertisement no.11/2013 has been discarded due to an alleged change in the minimum eligibility criteria for the post, which has been done after the last date of application.
2. The following reliefs have been sought in this OA reads as under:-
a] Quash the act of Respondent No.1 Commission to unilaterally change the minimum eligibility criterion [post qualification experience] from 3 to 4 years.
b] Quash the instructions appended to the advertisement, purporting to supplant the substantive provision of a post/posts.
c] Direct the Respondent No.1 Commission to carry out a fair and correct shortlisting for the interview for post advertised in Advt. No.11/2013 [Sl No.17].
d] Allow the applicant to compete in the interview, if deemed appropriate.
e] Pass any other or such further order/[s] as may be deemed fit under the facts and circumstances of the case.
3. Briefly, facts of the case are that the applicant had acquired Post Graduate Degree in Community Health Administration and had gained extensive experience in teaching, training and research activities. The advertisement no.11/2013 was notified by the UPSC for various posts including the one at serial no.17 namely Assistant Professor (P&SM) under the Ministry of Health and Family Welfare in which post qualification experience of minimum three years was specified as one of the eligibility conditions for the post. He applied for the said post. No intimation about the short-listing of the candidates was issued even though the advertisement had expressly stipulated that it would be separately issued and that his application has been discarded for not fulfilling the minimum eligibility criteria for the post qualification experience, which had been changed from three to four years. Aggrieved by the said action, applicant has filed the present OA.
4. Separate counter reply has been filed by the UPSC as respondent no.1 in which it has been stated that the main issue raised in the OA is regarding the criteria adopted by the Commission to short-list candidates for interview for the post of Assistant Professor (P&SM) as advertised in advertisement no.11/2013. It has been mentioned in the reply that the Commission has been vested with the power to devise modes of functioning objectively on the basis of reasonable classification of various posts on the basis of qualifications or experience. Such powers had been upheld by the Honble Supreme Court of India in Civil Appeal No.44 of 1990, Union of India and another Versus T. Sundaraman and others. Referring to the advertisement for the post in question, respondent no.1 has specifically referred to the prescribed essential qualification of Post Graduate Degree or equivalent with three years teaching experience in the concerned specialty, i.e. (P&SM) as Lecturer/Tutor/Registrar/Demonstrator/ Sr. Resident after requisite post graduate degree qualification. It was specified that teaching experience in any other post like GDMO/MO shall not be considered for eligibility purpose for recruitment to the teaching post. Respondents have further stated that the criteria adopted by the Commission to short-list the General Category candidates for interview of three years teaching experience was raised to four years.
5. In so far as the applicants case, in particular is concerned, it has been averred by the respondent no.1 that the applicant had claimed to have experience of 8 years 9 months and 23 days. On the other hand, according to the application, he completed his MD only in May, 2007. According to the criteria notified in the advertisement as enhanced for short-listing purpose, the experience of 2 years 9 months 15 days before May, 2007 had not been considered because it was not acquired after the post graduation degree. In so far as the past experience after the post graduate degree is concerned, i.e. after May, 2007, applicants experience of 2 years 3 months 24 days as National Consultant in the Ministry of Health and Family Welfare has not been found relevant as teaching experience. The remaining experience of 3 years 8 months 12 days only was found relevant and thus the applicant did not fulfill the short-listing criteria of 4 years experience after acquisition of his post graduation degree. Respondent no.1 has further stated that the Commission has conducted interviews for the post from 27.10.2014 to 30.10.2014. They have also referred to the order of the Tribunal in this matter on 17.10.2014 by which the interim direction of the Tribunal to permit the applicant provisionally to appear in the interview had been recalled. For this reason, applicant had not appeared in the interview.
6. Separate counter reply has been filed on behalf of respondent no.2 inter alia stating that since no specific averments and submissions have been made against that respondent. Their counter affidavit only enumerates the broad details and submissions already available in the counter affidavit filed by respondent no.1.
7. Rejoinder has been filed to the reply filed by respondent no.1 stating that the three judgments referred in the counter reply are distinguishable. It is further stated that the present OA is covered by the judgment of the Honble Apex Court in Tej Prakash Pathak Versus Rajasthan High Court [2013] 4 SCC 540. It is also stated that the short-listing criteria to give weightage to higher experience has been arbitrarily manipulated by not counting the applicants experience acquired before he acquired his post graduate degree.
8. The matter was heard. Mr. A.K. Agarwal on behalf of applicant has filed judgment of the Honble Supreme Court in Tej Prakash Pathak [supra].
9. Respondent no.1 has also filed the following citations:-
1. Union of India and another Versus T. Sundararaman and others, AIR 1997 SC 2418;
2. Madhya Pradesh Public Service Commission Versus Navnit Kumar Potdar and another, JT 1994 [6] SC 302;
3. Government of Andhra Pradesh Versus P. Dilip Kumar and another, JT 1993 [2] SC 138;
4. Ekta Shakti Foundation Versus Govt. of NCT of Delhi, AIR 2006 SC 2609.
10. We have considered the pleadings and documents as also argument placed by both parties, which is basically as per the pleadings already available on record.
11. The main issue to be decided is whether or not the UPSC was justified in fixing a short-listing criteria because there is no divergence in the pleadings and argument of the parties with respect to the educational essential qualification, as well as the experience of 3 years teaching noted above as contained in the UPSC notification at Annexure-A-1 with respect to vacancy no.17. Note II of the same notification reads as under:-
Note-II: In the event of number of applications being large, Commission will adopt shortlisting criteria to restrict the number of candidates to be called for interview to a reasonable number by any or more of the following methods:
a] On the basis of higher educational qualifications than the minimum prescribed in the advertisement.
b] On the basis of higher experience in the relevant field than the minimum prescribed in the advertisement.
c] By counting experience before or after the acquisition of essential qualifications.
d] By holding a Recruitment Test.
The candidate should, therefore, mention all his/her qualifications and experience in the relevant field over and above the minimum qualifications.
12. It is thus clear that the advertisement itself notified that the short-listing would be resorted to by the Commission in the event of there being large number of applications, in order to restrict the number of candidates to be called for interview by any or more of methods enumerated in the advertisement noted above. For the purpose of the present OA, sub-para [b] of Note-II is relevant which relates to short-listing based on higher experience in the relevant field than the minimum prescribed in the advertisement.
13. We observe that UPSC has, therefore, resorted to the criterion which was duly notified and which they were competent to do, and have done so. They have short-listed the number of candidates to be called for interview. It is also to be mentioned that according to the calculation given by the UPSC, the applicant did not have the requisite 4 years experience after May, 2007, i.e. after having acquired his post graduate degree.
14. We have considered the judgment cited by the learned counsel for applicant in the matter of Tej Prakash Pathak [supra], specifically para-15, which reads as under:-
15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the rules of the game insofar as the prescription of eligibility criteria is concerned as was done in the case of C. Channabasavaiah v. State of Mysore [AIR 1965 SC 1293] etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the rules of the game stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Honble Chief Justice of India for appropriate orders in this regard. It appears from the above that the matter was ultimately referred to the Honble Chief Justice for constitution of Larger Bench. It appears that the substantive portion of the judgment is of no assistance to the applicant in the present OA.
15. On the other hand, respondent no.1 has cited the judgment of Union of India and another Versus T. Sundararaman and others with specific reference to para-4 of the said judgment, which is reproduced below:-
4. The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received the commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission vs. Navnit Kumar Potdar & Anr. JT (1994) 6 SC 302 this court has upheld shortlisting of candidates on some rational and reasonable basis. In that case, for the purpose of shortlisting, a longer period of experience than the minimum prescribed was used as a criterion by the public service Commission for calling candidates for an interview. This was upheld by this Court. In the case of Govt. of A.P. vs. P. Dilip Kumar & Anr. JT (1993) 2 SC 138 also this court said that it is always open to the recruiting agency to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the commission was legitimate. The decision of the Tribunal is, therefore, set aside and the appeal is allowed. There will, however, be no order as to costs. By this judgment the Honble Supreme Court has justified the action of the executive agency to screen candidates due for consideration by prescribing higher eligibility qualifications with the ultimate objective of narrowing down the zone of consideration for promoting candidates with higher qualifications. The action of the UPSC in this matter, therefore, falls within the aforenoted decision of the Honble Supreme Court.
16. Para-6 of the judgment in Madhya Pradesh Public Service Commission [supra] is reproduced below:-
6. The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset 297that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. Here also the Honble Apex Court has justified narrowing down number of candidates to be called for interview on the basis of rational criteria. Again extract of para-13 of the said judgment is relevant, which is reproduced below:-
13. The High Court has taken the view that raising the period from five years to seven and half years' practice for purpose of calling the candidates for interview amounted to changing the statutory criteria by an administrative decision. According to us, the High Court has not appreciated the true implication of the short-listing which does not amount to altering or changing of the criteria prescribed in the rule, but is only a part of the selection process. The High Court has placed reliance on the case of Praveenkumar Trivedi v. Public Service Commission, M.P3 where it has been pointed out that Commission cannot ignore a statutory requirement for filling up a particular post and cannot opt a criteria whereby candidates fulfilling the statutory requirements are eliminated from being even called for interview. As we have already pointed out that where the selection is to be made purely on the basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the Commission or the Selection Board has no option but to short-list such applicants on some rational and reasonable basis.
17. Similarly, in another other judgment referred to in the matter of Government of Andhra Pradesh Versus P. Dilip Kumar Anr. [supra], the Honble High Court has once again up held the modality of selection on the basis of higher educational qualifications.
18. In the recent judgment referred to in the matter of Ekta Shakti Foundation Versus Govt. of NCT of Delhi [supra], the Honble Supreme Court has held that power of judicial review and administrative action does not permit the Court to direct or advise the executive in matters of policy and has held that it be left best alone on the executive. Para-11 of the said judgment is reproduced below:-
11. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.
19. In so far as the concept of application of a decision in other cases is concerned, the Honble Supreme Court held that the concept of equality provided under Article 14 is a positive concept, which cannot be enforced in a negative manner. Discrimination does not arise on the basis of a wrong decision taken in case of another person without any rational basis, and none has the right to be given what has been wrongly given to other. Para-18 of the judgment in this regard is relevant and is reproduced below:-
18. In State of Haryana & Ors. v. Ram Kumar Mann MANU/SC/1095/1997 : [1997]IILLJ1039SC this Court observed:
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly Circumstanced person claim equality under Section 14 for Reinstatement? The answer is obviously "No".
20. Having regard to the above, it is clear that respondent no.1 has adopted a proper short-listing criteria whereunder it had raised the required experience after the acquisition of post graduate degree from 3 years to 4 years. Having done so, since the applicant did not possess the required service of 4 years after acquiring his post graduate degree, he was not called for interview by respondent no.1. We find no impropriety or infirmity in the decision of the respondent-UPSC.
21. For the reasons aforenoted, OA being devoid of merit, the same is accordingly dismissed without any order as to costs.
(Raj Vir Sharma) (Ashok Kumar)
Member (J) Member (A)
/jk/