Central Administrative Tribunal - Delhi
Brajesh Kumar vs Union Of India on 26 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.845/2014 with
M.A. No.748/2014
M.A. No.749/2014
Order Reserved on 27.03.2015
Order Pronounced on: 26.05.2015
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
1. Brajesh Kumar,
S/o Prabhu Prasad
Indra Enclave, Phase-II,
Block-A, Gali No.3, House No.192,
Mubarakpur Road, Nagloi, Delhi.
2. Deepak Kumar
S/o Ram Kumar
Flat No.795, Second Floor,
Radhika Apartment, Sector-14,
Dwarka, New Delhi-110078.
3. Anupama Singh
D/o S.I. Singh
135/5-C, Chhota Baghara,
Allahabad, U.P.-211002.
4. Shri Bhagirathi Gartia,
S/o Shri Chhabira Garita,
H/1-A, Shr Ramnagar,
Phase-1, Street No.4,
Raipur, Chhatisgarh.
5. Abhijit Ambekar
R/o UG-4, ILA CIDADE, Old Goa,
Bipass Road, Goa-103402.
6. Shankar Sharma
S/o Shri Rajdev Sharma
At Gopalpur, P.O. Nirajanpur
Distt. Arwal (Bihar 804428)
7. Aravazhi
S/o R Partha Sarathy
Siddapan Building
Temple Street, Halehidu
Hassan-573121.
8. Bipin Chandra
S/o Late Khushal Singh
A-29, Shivam Park, Near Vaikunth-II,
New VIP Road, Vadodara, Gujarat.
9. Anil Kumar
S/o D Ashok Kumar
VO 47, Manuswawil Street
Perambur, Chennai.
10. Shiv Barat
S/o Jagannath Bhagat
Vill.- Mirzapur
PO-Golhatti
Distt. Banka (Bihar)-813104.
11. R.N. Kumaran
D/F-2, Lucky Apartments,
Opp. ONGC, Markarpura Road,
Vadodara 390009
12. C.R. Gayatri
4/45, First Street,
Lakashmpuram Extension
Mudichur Road,
Chennai 600 045.
13. Sachin Kumar Tiwari
C/o Amitabh Tiwari
At. Balmikinagar
Ward No. 13
P.O. + DIstt. Bhabhabhua,
Bihar. -Applicants
(By Advocate: Shri C.P. Yadav)
Versus
1. Union of India,
Ministry of Culture,
Through its Secretary,
503, C Wing,
Shastri Bhawan,
New Delhi-15.
2. Director General,
Archaeological Survey of India,
ASI Head Quarters, Janpath,
New Delhi-11
3. Chairman,
Union Public Service Commission,
Shahjahan Road, New Delhi-69. -Respondents
(By Advocate: Ms. Shruti Munjal for Ms. Rekha Palli
and Shri J.B. Mudgil for R-3)
O R D E R
Per Sudhir Kumar, Member (A):
MA No.749/2014, filed seeking leave and permission for joining together in filing the present OA, is allowed, and MA No.748/2014 praying for exemption from filing translated copies of Annexures is also allowed.
2. 13 applicants of this OA are before us aggrieved by the actions of the respondents in having suddenly stopped and dropped the process of selection started by the Respondent No.3, representing the Union Public Service Commission (UPSC, in short), on the basis of the requisitions dated 08.07.2009 and 16.07.2010, because of such a request conveyed through the letter of the then Respondent No.2, Director General, Archaeological Survey of India (ASI, in short) dated 08.10.2013, produced by the applicants at Annexure R-7 of the OA. They are aggrieved by the cancellation Notification issued thereafter by the UPSC through Annexure R-8, to stop and drop the process of recruitment for the posts of Deputy Superintending Archaeologists (Dy. S.As., in short), which had already been started, and in respect of which the result of the written examination held on 06.03.2011 had also been already declared. The applicants have sought directions upon the respondents to restore and complete that stalled process of recruitment for the already advertised posts of Dy. S.As. concerned, and had prayed for the following reliefs:-
i) Quash the Director General, Archaeological Survey of India letter dated 08.10.13 written to Union Public Service Commission for withdrawal of advertisement/requisition sent for filling up of 24 posts of Deputy Superintendent and for stay of process of selection.
ii) quash the cancellation notice dated Nil issued by Union Public Service Commission to close the process of recruitment of Deputy Superintendent in pursuance of Respondent No.2 letter dated 08.10.13.
iii) issue direction to direct the respondents to restore advertisement dated 10.07.2010 issued for appointment of 24 Deputy Superintendent in Archaeological Survey of India and to complete the process of recruitment for the above said posts by conducting interview of candidates selected in pursuance of written examinations held on 06.03.2011.;
iv) Pass such other and further order/orders as this Honble Court may deem fit and proper in the facts and circumstances of the present case.
3. The facts of the case lie in a narrow compass. The Recruitment Rules for the posts of Dy. S.As. provide for 40% of the posts to be filled up through promotion from the feeder grade, and 60% of the posts to be filled up by direct recruitment, as per the Recruitment Rules for the said post framed and notified in the year 1985.
4. In the year 2009, the Central Advisory Board of Archaeology (CABA, in short) prepared a proposal for restructuring of the whole organization of ASI, and a sub-committee on restructuring of ASI was set up, and in the 34th meeting of CABA held on 02.12.2009, it was unanimously resolved to recommend to the Government that the restructuring proposal as prepared by ASI should be approved at the earliest, which recommendation was made on 22.12.2009.
5. A copy of the reply tabled before the Lok Sabha on 23.04.2013, in response to Unstarred Question No.4790, has been produced by the applicants at pages 38 to 41 of the OA to support their contentions. It was mentioned in the reply tabled in the Parliament that ASI had already created 4 additional posts of Additional Director General, and 18 additional posts of Joint Director General, and a comprehensive proposal for overall strengthening of ASI was in the process of preparation. More than three years before this, at the requisition sent by Respondent No.2-ASI, the Respondent No.3-UPSC had through its advertisement No.7 published in Employment News dated 10-16 April, 2010, advertised for filling up 24 posts of Dy. S.As. in the ASI, out of which 02 posts each were reserved for SC, ST & OBC candidates, and one for Physically Handicapped/ Orthopaedically Handicapped /Locomotor Disability/Cerebral Palsy/Impaired Reach /Weakness of Grip etc.
6. Ultimately, the Recruitment Test pursuant to that advertisement of vacant posts was conducted on 06.03.2011, and the list of Roll Numbers of the candidates, who were framed to be provisionally selected, was declared through UPSC Notice dated 15.11.2011 (Annexure A-3). Immediately thereafter, the whole recruitment process came to be scrutinized by the Honble Delhi High Court, when the Honble Delhi High Court delivered its judgment dated 20.01.2012 in WP (C) No.140/2012 Prabin Kesri and Ors. vs. Archeological Survey of India & Ors., produced by the applicants at Annexure A-4 (pages 86 to 96). This Writ Petition was directly concerned with appointments to the very same 24 posts of Dy. S.As. advertised on 10.4.2010, and the Honble High Court had noticed the essential qualifications as prescribed in the UPSC advertisement, and its corrigendum, and had noted that it had been prescribed that the medium of the written test conducted on 06.03.2011 would be English only. The Writ Petitioners of that WP (C) No.140/2012 had earlier approached this Tribunal in OA No.913/211 agitating two grounds, firstly that the Recruitment Test ought to have been conducted in Hindi and not in English, since one of the essential qualifications specified in the advertisement was a Masters Degree in languages, such as Sanskrit, Persian, Prakrit, Pali, Arabic etc., whereby the candidates, who had post graduate degrees in languages other than English, would be put to a disadvantage because of the stipulation that the written test would be conducted in English only, and secondly it was pleaded that eligibility for the applicants to be allowed to appear in the examination should have been looked at accordingly prior to declaring 598 persons out of 1077 persons, who had applied for the said posts, to be declared eligible to appear at the written test, thus, rendering 479 as ineligible. The Tribunal had refused to interfere with the process of selection, but had directed the Respondent-ASI to ensure that only eligible candidates are considered at the time of interview.
7. The Honble High Court also saw reasoning and logic behind the submissions of the respondent-ASI in respect of the first point, and further amplified and clarified the directions issued by the Tribunal in its judgment dated 20.01.2012 in Prabin Kesri and Ors. (supra) in the following words:-
7. Even before us, the learned counsel for the petitioners reiterated the contentions which had been put forth before the Tribunal. Insofar as the plea with regard to the medium of the test being English is concerned, we do not see any logic for the same. The Master's Degree in languages includes not only Sanskrit, but also other languages such as Arabic, Persian and Pali. In that case, if the reasoning of the petitioners was to be adopted, in any event, even if Hindi is taken as the medium of the test, instead of English, the candidates, who had obtained Master's Degree in Arabic, Persian and Pali, would be at a disadvantage. Therefore, we do not see any logic in the arguments advanced by the learned counsel for the petitioners with regard to the medium of the test being English only. In any event, as observed by the Tribunal, the test was on the basis of multiple choice questions and was not based on essay type answers. Anybody having a working knowledge of English could have taken the test. The petitioners are employees in the Archaeological Survey of India and it cannot be denied by them that they have working knowledge of English. We do not find any reason to interfere with the decision of the Tribunal on this aspect of the matter.
8. Insofar as the second point is concerned, the respondents have clarified that the question of eligibility was to be considered after the screening test, which was in the form of a written test. It is only after the persons qualified in the screening test that the condition of eligibility would be considered. The affidavit filed on behalf of the UPSC before the Tribunal specifically indicates the above position as under:-
"It is submitted that a candidate who has been issued Admission Certificate on the basis of the prima facie scrutiny of the data filled by the candidate in the Part -- I of the Application Form will not be straightway called for interview on qualifying the Recruitment Test. The Part-II of the Application Form alongwith documents in support of fulfilment of the eligibility criteria will be scrutinised to ensure that the candidates who will be declared qualified on the basis of the Recruitment Test possess the eligibility criteria in respect of Essential Qualifications [EQ-I and EQ-II] etc. It is submitted that the procedure adopted in the Commission for further scrutiny of the Part-II of the Application Form as well as documents in support of the Essential Qualifications etc. of the written test qualified candidates would ensure that only eligible candidates are called for interview."
9. Even the list of persons, who are to be called for the interview, which is placed at page 83 (Annexure P-5), is a provisional list. In that list, the Commission has listed 77 roll numbers for interview "provisionally". According to the learned counsel for the petitioners, this list also comprises of certain persons who are ineligible. However, the learned counsel for the respondents have assured this Court as they had assured the Tribunal that no ineligible person would, in fact, be called for the interview. We, therefore, clarify that in case there are any ineligible persons mentioned in the list of 77 persons indicated in the said provisional list, they shall not be called for interview. Their place would be given to the next eligible persons in order of merit. After that exercise is done, the respondent No. 2 shall publish the final list of persons, who are to be called for interview, on its website.
With these directions, this writ petition is disposed of.
(Emphasis supplied).
8. In the meanwhile, another OA No.101/2011 Mukesh Kumar Mishra vs. UPSC & Another had, in parallel, been filed before the Lucknow Bench of this Tribunal, which does not appear to have been noticed by the order of the Principal Bench of this Tribunal in OA No.913/2011 filed at New Delhi, nor by the Honble High Court in its judgment delivered on 20.01.2012, as at that time it was still pending.
9. The UPSC, therefore, in terms of the Honble Delhi High Courts judgment, declared a supplementary result in respect of 11 more candidates to have acquired provisional eligibility for being called for interview, at the end of which supplementary result it was mentioned that the result of the recruitment examination would be subject to final decision of the Lucknow Bench of this Tribunal in OA No.101/2011. Till the date of filing of the present OA on 05.03.2014, as the applicants had mentioned in Para-4(vi), that the OA was still pending before Lucknow Bench of this Tribunal.
10. Around the same time, the ASI issued another requisition to the UPSC for filling up of 8 more vacant posts of Dy. S.As. in ASI, which posts were also notified by the UPSC through its Advertisement No.12/2013 in Employment News dated 24-30 August 2013 (Annexure A-6) pages 98 to 190. The applicants before us have submitted that the requisite recruitment criteria for filling up of the 8 posts as advertised through this Advertisement No.12/2013 were identical to the criteria as prescribed by UPSC earlier in Advertisement No.7/2010 (Annexure R-2). However, they have submitted that though there was no change at all in either the essential educational qualifications or any other essential requirements, but this time the requirement of appearing at a written test had been done away with, and the short listed candidates were now required to appear only at an interview for the purpose of selection. This the applicants before us have assailed as amounting to giving up the earlier transparent selection process (written test followed by interview).
11. Not only this, through his abovementioned impugned D.O. dated 08.10.2013 (Annexure R-7), the then Director General, ASI had written to the UPSC that even though the requirement of the job of Dy. S.As. has undergone a lot of changes, and the number of posts has also increased from 48 to 65, the Recruitment Rules for the post notified in 1985 had not so far been amended, even though the DoP&T standing guidelines prescribe that Recruitment Rules should be reviewed after every 5 years. It had been stated that this aspect had been overlooked by the ASI while sending the earlier requisitions for filling up the vacant posts in 2009-2010. The impugned letter further mentioned that a comprehensive proposal for restructuring and strengthening of ASI was at a very advanced stage of approval, and since the strength of the various levels of officers in ASI is likely to change thereafter, it would also need major amendments in the relevant Recruitment Rules. It was further stated that the exercise to amend the Recruitment Rules for various posts including Dy. S.As. had also been started, and as per the draft Recruitment Rules finalized by the ASI, the mode of recruitment is likely to be changed to 100% on the basis of promotion from the feeder grade. The then DG had then expressed his apprehension that if the already notified and started recruitment process for 24 posts out of total sanctioned strength of Dy. S.As. of 65 gets completed, more than 33 Assistant Superintending Archaeologists (ASAs, in short), and about 50 Assistant Archaeologists (AA, in short), who have put in more than 15 to 25 years of service in the same profession, shall become junior to the direct recruits for all times to come, causing great amount of discontent and demoralization, which may directly or indirectly affect the functioning of ASI. He had, therefore, pleaded with Respondent No.3 UPSC for the requisitions sent by the ASI on 08.07.2009 and 16.07.2010 to be considered for withdrawal, and, along with that, a stay on the process of selection already undertaken, giving a commitment at the same time that the ASI would revert back to the UPSC after the proposal for restructuring and strengthening of ASI has been finalized, and also the revised Recruitment Rules for the post of Dy. S.As. have been notified afresh. This had led to the abovementioned cancellation Notification (Annexure A-8) being issued by the Respondent No.3 UPSC, only on the basis of a D.O. letter from Respondent No.2 ASI, forcing the present applicants to come to this Tribunal in the present proceedings.
12. The applicants before us have termed the decision of the respondents to withdraw and cancel the advertisement /requisition for appointment of Dy. S.As. more than three years after the date of issuance of the relevant advertisement, and much after the examination had been conducted, and 77+11=88 persons having been declared to have been provisionally selected for the purpose of interviews, as being illegal, arbitrary, unjust and un-Constitutional. The applicants have pleaded that the Constitutional scheme is for the Government to have persons who would be able to serve the society better, and discharge the functions attached to their office effectively and efficiently, and for this purpose a person selected through the rigorous process of selection through a written examination followed by interview would be able to serve in the organization in a much better capacity and manner than the one either selected directly through interviews only, or through 100% by way of promotions, pointing out that in the August 2013 UPSC Notification (Annexure A-6), the respondents have now proposed to select candidates on the basis of interviews only.
13. The applicants have further alleged malafide intention on the part of Respondent No.2 to try to select candidates of their own choice against the 24 posts of Dy. S.As., which had already been advertised on 10.07.2010, by belatedly withdrawing or cancelling the said advertisement. The applicants have further taken the ground that the respondents have withdrawn and cancelled the aforesaid advertisement after the written examination for the said posts had been conducted, and even the result of the written test, and its corrigendum, had been issued by the UPSC, therefore, the actions of the respondents R-2 & R-3 in withdrawal/cancellation of the process of selection was illegal, and unjust, and the reasons given for withdrawal of the notification for the 24 advertised posts were completely arbitrary and irrational.
14. The applicants have taken the further ground that the Respondents taking shelter behind the proposal for restructuring of ASI was irrational, unjust and uncalled for. They have submitted that obviously the advertisement dated 10.07.2010 was issued consciously, even after submission of the proposal for restructuring of ASI, looking at the urgency and necessity for filling up of the posts of Dy. S.As., which are critical in the ASI for its proper functioning, and the advertisement was even acted upon by R-3 the UPSC, by holding the written test, and then declaring the result of the 77+11=88 provisionally selected candidates of the written test who were found eligible for being interviewed. They had taken the further ground that if the respondents would be allowed to decide to fill the said posts now by inviting fresh applications, most of the already provisionally selected candidates, who were to be called for the interviews, will become ineligible for consideration, due to crossing of the age limit.
15. They had taken the further ground that when no action had been taken to review the Recruitment Rules after every five years ever since they were notified in 1985, in conformity with the DoP&T guidelines, the mere need for their amendment cannot be a ground for the respondents to take the stand they have taken now, and also that since the respondents had not yet amended the Recruitment Rules, 1985, filling up of the 8 posts of Dy. S.As. only on the basis of interviews could not have been notified in 2013, in violation of the not yet amended Recruitment Rules of 1985. They had taken the ground that doing away with the written test eliminates transparency in the process of selection, and first for facilitating this fresh selection, cancelling the entire selection held earlier is against the principles of natural justice and proportionality, and is wholly unwarranted, unnecessary, and totally in excess of an understanding of the gravity of what was at stake, and thereby irrational.
16. They have taken the further ground that in all previous litigations before this Tribunal, and before Honble High Court, the grievances of the applicants were only in respect of the medium of the written examination, and nobody had ever challenged them on the ground of being conducted under the Recruitment Rules of 1985, which are still in vogue. They had submitted that cancelling the whole process of direct recruitment already undertaken and nearly completed, while at the same time going ahead with promotions, was in violation of Article 14 of the Constitution of India, and that the pendency of the restructuring proposal was a mere excuse, as a proposal, which has been pending for more than 5 years, and has no sign of getting approved in the near future, cannot be used to cancel the selection process already undertaken, which has reached an advanced stage. They have taken the ground that applying Wednesbury test of unreasonableness as well as proportionality test, the decision taken by the respondents cancelling the earlier advertisement, and selection process already undertaken, and the already declared result of the written examination, was wholly unfair, unreasonable and arbitrary. In the result, the applicants have prayed for the reliefs as sought for, already reproduced in Para 2/above.
17. Counter affidavit on behalf of Respondent No.3-UPSC was filed on 27.08.2014. In this they had explained the role of UPSC as an authority established under Articles 315 to 323 of the Constitution of India. They had confirmed the conduct of recruitment test on 06.03.2011, and declaration of the said result on 15.11.2011, and though they had not mentioned anything regarding the supplementary result in respect of 11 persons declared on 18.07.2013 (Annexure A-5), but had admitted that the applicants of the present OA had appeared in the said recruitment test, and were declared successful, and had been found to be provisionally eligible for being called for interviews. However, it was submitted that on the request of Respondent No.2, the recruitment process already commenced had been cancelled through Press Note dated 07.11.2013, and, therefore, the applicants had no indefeasible rights against the answering respondent-UPSC, and the OA is, therefore, not sustainable.
18. It was further submitted that in view of the withdrawal of the requisition itself by Respondent No.2 vide letter dated 08.10.2013, no purpose would be served in Respondent No.3-UPSC continuing with the process of recruitment, and, therefore, it had been decided to cancel it, since the indenting department itself was no longer interested in the recruitment of the notified 24 posts of Dy. S.As.. They had pointed out that the OA No.101/2011 filed by Mukesh Kumar Mishra at Lucknow Bench of this Tribunal had also been dismissed as infructuous, vide order dated 26.03.2014. It is seen that that order had been passed by the Lucknow Bench relying upon the order of this Principal Bench in OA No.913/2011, concerning the language of examination, and not on the merits of the conduct of the examination.
19. It was further submitted by Respondent No.3-UPSC that Respondent No.2-ASI had further stated that it would revert back to Respondent No.3-UPSC after Cadre restructuring, and after the revised Recruitment Rules for the post of Dy. S.As. had been notified. It was thereafter stated that grounds as raised by the applicants are not legally sustainable, and that the applicants have not availed of any alternative remedies, and, therefore, they are not entitled for any reliefs prayed for in the OA. Annexure R-1 was a photocopy of the same letter dated 08.10.2013, which had been produced by the applicants as Annexure A-7 (pages 191 to 194 of their OA), and at Annexure R-II was the order of the Lucknow Bench dated 26.03.2014, and Annexure R-III was a copy of the cancellation Notifications Newspaper publication.
20. A short counter reply on behalf of Respondents No. 1 & 2 was filed on 12.11.2014, praying for liberty to later file a detailed para-wise reply, if needed, at a later stage. The Respondents No.1 & 2 had contended that since fresh proposal for filling up 38 posts of Dy. S.As. had already been submitted to Respondent No.3-UPSC vide letter dated 22.09.2014 sent by Respondent No.1, the present OA has become infructuous, and now it is for Respondent No.3 UPSC to take steps to select eligible persons for filling up the 38 posts of Dy. S.As. as per Recruitment Rules.
21. It may be pointed out by us here itself that in this short affidavit, the Respondents No.1&2 did not indicate as to under which Recruitment Rules the fresh proposal for filling up 38 posts of Dy. S.As. had been sent to Respondent No.3-UPSC, whether under the 1985 Rules already Gazette notified and in existence, or under the draft Rules not yet finalized and Gazette notified, as has been alleged by the respondents.
22. It was further submitted by R-1 & R-2 that the previous process of recruitment for 24 posts of Dy. S.As. initiated in April 2010, and for 8 posts of Dy. S.As. initiated in 2013, the recruitment process had been short closed by Respondent No.2 ASI since the Recruitment Rules were under revision, and, accordingly, the Respondent No.3 UPSC had conveyed their approval to treat the recruitment process for 24 posts of Dy. S.As. as closed. We may point out here that no closure Notification was requested or issued by the U.P.S.C. ever in respect of the remaining notified 8 posts of Dy. S.As., which were also included in the then on-going recruitment process.
23. However, it was stated that in April 2014, on review of manpower position in Respondent No.2-ASIs Organization, it emerged that 43 posts of Dy. S.As. are vacant, and since the post of Dy. S.As. is a vital post and a feeder channel in the Archaeology cadre, and many of the applicants in the initial recruitment process in April 2010 were already Assistant Superintending Archaeologists and Assistant Archaeologists of ASI itself, whose career prospects were being jeopardized because of the age restriction of 40 years in the draft Recruitment Rules, which were proposed by ASI to be applied to the recruitments to be notified now, vide letter dated 30.05.2014. This fresh request had been made by Respondent No.1-Union of India to Respondent No.3-UPSC to re-start the recruitment process for 32 posts of Dy. S.As., which figure of 32 was certainly different than the 38 posts, which were requested to be filled-up now in the very next following sentence. The fresh proposal sent by Respondent No.2 ASI to the Respondent No.3-UPSC on 22.09.2014 was for filling up of 38 posts of Dy. S.As. as per Recruitment Rules, which figure had been mentioned as 38, as different from 32 mentioned in the very previous sentence, and, further, nowhere it had been clearly mentioned as to which Recruitment Rules were to be followed by Respondent No.3-UPSC. Obviously, this shows a total callousness and non-application of mind in the Office of Respondent No.2 ASI at any level whatsoever. However, still the deponent Director (Administration) in the office of ASI had thereafter prayed that the OA has become infructuous and it may be dismissed.
24. The applicants thereafter filed a rejoinder to the counter affidavit filed on behalf of Respondents No.1&2. It was submitted that no specific grounds had been put forward in the counter affidavit of the respondents, and, therefore, the same is liable to be rejected, with exemplary cost against the respondents, and in favour of the applicants. Thereafter, preliminary objections were taken that the respondents have not acted in a bonafide manner in closing the earlier recruitment process of 24 Dy.S.As. as already initiated. It was further submitted that from the short counter reply filed by Respondents No.1&2, it is clear that that process of selection had been stopped because it was said that the Recruitment Rules were under revision. However, even the fresh proposal for filling up 38 posts of Dy. S.As. had also been initiated through letter dated 22.09.2014 on the basis of the same earlier Recruitment Rules. Therefore, it was pointed out that it is clear from the conduct of Respondents No.1&2 that they had closed the earlier recruitment process due to wrong reasons, by unnecessarily citing restructuring of the cadre as a reason, which was not correct. It was further submitted that the actions of the Respondents No.1&2 were without any reasonable basis, and were fully against the interests of the applicants, as most of the applicants have by now become over age, and they would not be able to avail of the opportunity of participating in the fresh recruitment process now stated to have been initiated through letter dated 22.09.2014.
25. It was submitted that in this manner the respondents have not only tried to deceive the applicants, but have also in a malafide, arbitrary and illegal manner ruined the fate and future of the applicants of the present OA, by cancelling the selection process already undertaken, the reasons for which have not been properly disclosed, and logically considered in any manner whatsoever by the respondents. It was further submitted that the sole purpose of the respondents to cancel the earlier on-going recruitment process was to bring their kith and kin in the zone of selection, who had not succeeded in the previously on-going recruitment process. It was, therefore, mentioned that the actions of the respondents in cancelling the whole on-going recruitment process were premature, and also against the law and principles of natural justice.
26. A separate rejoinder affidavit was filed by the applicants in respect of the counter affidavit filed on behalf of Respondent No.3-UPSC. It was submitted that when once the UPSC sets the process of recruitment in motion by advertising the posts, it has to be in conformity with the notified Recruitment Rules framed under Article 309 of the Constitution of India, and if the number of eligible applicants largely exceeds the number of posts advertised, the Respondent No.3-UPSC has to certainly devise objective short listing criteria, or hold recruitment test, on the basis of reasonable classification, to restrict the number of candidates to be called for interviews, according to the criteria fixed by it. It was further submitted that the experience of UPSC over the years has shown that in order to be able to complete the recruitment process for any posts in a time bound manner, certain guidelines have to be followed, which guidelines have been rightly framed by the UPSC, and are followed as a matter of policy in respect of all examinations/recruitments conducted for All India level selections.
27. It was submitted that it was also an obligation and duty of the UPSC to first verify the facts and circumstances under which the recruitment advertisement issued by it earlier, was likely to be rendered to be cancelled, and only after getting the required confirmation from the indenting Department and its examination, that advertisement could have been cancelled by Respondent No.3-UPSC, which it has failed to do in the instant case. It was submitted that UPSC cannot act as a mouth piece for the respondent-department, to either get vacant posts advertised, or to cancel the advertisement, as per the sweet will of the respondent-department, but rather it is supposed to do its work in the Constitutional frame work, which has been prescribed by the UPSC itself. It was submitted that Respondent-UPSC has, in the instant case, not acted in a bonafide manner while cancelling the on-going recruitment process for 24 posts of Dy. S.As., and that, therefore, the action of the respondents was without any reasonable basis, and fully against the interests of the applicants, as most of the applicants of this OA have by now became over age, and they cannot now avail the opportunity of any fresh recruitment process now initiated. It was submitted that in this manner even the Respondent No.3-UPSC has tried to deceive the present applicants, and has in a malafide, arbitrary and illegal manner ruined the fate and future of the applicants, by cancelling the on-going selection process without sufficient grounds, which was also against the law and principles of nature justice.
28. Heard. The counsels of both the sides argued more or less in accordance with their pleadings, as we have already discussed above in great detail. Thereafter, the learned counsel for the applicants also submitted written submissions of his arguments in brief. The main question posed by the learned counsel for the applicants was that the issue to be decided by this Tribunal is as to whether the respondents could have withdrawn or altered the process of selection when the same had already been set in motion and started. In saying so, the learned counsel for the applicants had relied upon two judgments of the Honble Apex Court, in Hemani Malhotra vs. High Court of Delhi (2008) 7 SCC 11 and N.T. Devin Katti and Others vs. Karnataka Public Service Commissioner and Others (1990) 3 SCC 157. On the basis of these judgments his submission was that once the game of recruitment process starts, the Rules of the game cannot be changed, and when once the selection process has started, the same could not have been cancelled in the manner in which the respondents done.
29. On the other hand, in his reply arguments, the learned counsel for the respondents had produced the letter dated 19.11.2014, under which the Respondent No.3-UPSC has advised Respondent No.2-ASI to take action to fill up the posts by submitting the proposal under Single Window System, after amendment of Recruitment Rules for the posts concerned, and even the latest proposal/indent with other documents had been returned in original, and the matter has been treated as closed. It is thus clear from this that though on the one hand Respondent No.3-UPSC has hurriedly acted upon the request of the Respondent No.2-ASI to cancel the already ongoing process of recruitment initiated in 2010, and, on the other hand, they have stuck to their proper procedure and policy that if recruitment has to be done according to some new Recruitment Rules, the proposal has to be submitted by indenting Department after the amendment of the Recruitment Rules for the posts in question, and that the draft Recruitment Rules for any post cannot form the basis for any process of selection.
30. The respondents had also relied upon the Honble Delhi High Courts judgment in W.P. (C) No.3149/2014- S.P. Kala & Ors. vs. Union of India & Ors, delivered not in the context of direct recruitments, but in the context of promotions to the post of Superintendent (Electrical and Mechanical) Grade II under the General Reserve Engineer Force, and the respondents had particularly relied on Paragraphs 11 & 12 of the judgment, which states as follows:-
11. Learned counsel for the petitioner had sought to urge that vacancies prior to amendment made in the year 2012 should be directed to be filled up as per the previous rules in view of the settled legal position being that vacancies have to be filled up in the year of the vacancy from out of the eligible candidates of the year of the vacancy and as per the rules applicable at said point of time.
12. This argument of the petitioner overlooks that in law if a conscious decision is taken not to fill up vacancies till the rules are amended, it would be permissible for the appointing authority to defer filling up the vacancies till the rules are amended.
(Emphasis supplied).
31. We have given our anxious consideration to the facts of this case. The law regarding sanctity of a process of selection once started being required to be maintained was laid down by the Honble Apex Court in very clear terms in the two judgments correctly cited by the learned counsel for the applicants. In the case of Hemani Malhotra (supra), Paragraphs 13,14 & 15 of the said judgment stated as follows:-
13. From the record of the case it is evident that the public advertisement was issued by the respondent for direct recruitment to Delhi Higher Judicial Services. As per the said advertisement written examination was to be held on March 12, 2006. The selection process was of two stages: stage one was written examination comprising one paper only of 250 marks, whereas stage two included interview/vive-voce. As per the advertisement minimum qualifying marks in the written examination were specified to be 55% for General candidates and 50% for Scheduled Castes and Scheduled Tribes candidates but no cut off marks were prescribed for vive-voce test at all. The averments made in the petitions which are not effectively controverted by the respondent would indicate that oral interview was postponed by the respondent on six occasions and was finally conducted by the Selection Committee only on February 27, 2007. However, before that date criteria of cut off marks for vive-voce test was introduced by the respondent.
14 It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vive-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K.Manjusree against the State of A.P. & Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:-
"The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted.
15 There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
(Emphasis supplied).
32. Therefore, the submission that changing the Rules of the game during selection process, or when it is over, is not permissible in respect of any recruitment process, is the law as laid down by the Honble Apex Court in this case.
33. In the second cited case of N.T. Devin Katti and Others (supra), the Karnataka Public Service Commission had started the process of recruitment following the Karnataka Governments order dated 06.09.1969 prescribing for certain reservations for the posts of SC/ST and other backward classes, and prescribing that reservation to be 15% for SCs, 3% for STs and 30% for Other Backward Classes, in respect of all the posts to be filled up by direct recruit.
34. The story thereafter can best be narrated by borrowing from the Honble Apex Courts order itself, as follows:-
7. During the pendency of selection, the State Government issued the order dated 9th July 1975 revising the extent of reservation and also prescribing a different mode of selection. Para 4 of that Government Order laid down that while making appointment to the State Civil Services, reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward Classes shall be made to the extent of 15%, 3%, 30% and 28% respectively, in case of direct recruitment. Para 6 of the Order further directed that in case of direct recruitment where the selection is made by the Public Service Commission or any other recruiting authority. the procedure as prescribed in Annexure 2 to the Order shall be followed in preparing the list of selected candidates. Annexure 2 to the Order prescribed mode of selection, which is quite different than that contained in Annexure 2 to the Government Order dated 6th September 1969. It is not necessary to go into the details of the two modes as there is no dispute that the Commission had followed the procedure as prescribed under Annexure 2 to the Government Order dated 6th September 1969 and the list, so prepared was not approved by the State Government as it was of the opinion that the Commission should have followed the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 in preparing the select list.
8. It appears that the Commission insisted before the State Government that in view of Para 11 of the Government Order dated 9th July 1975 reservations made in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes already notified before the issue of Government Order dated 9th July 1975 remain unchanged therefore the provisions of the Government Order dated 6th September 1969 had to be followed both in regard to reservations and the mode of selection. The State Government by its order dated 23rd April 1976 refused to accept the Commission's plea and it directed the Commission to prepare a revised list in accordance with the provisions of Government. Order dated 9th July 1975. The State Government while rejecting the Commission's plea and issuing the aforesaid direction made observations as under :
"Para 11 of the G. 0. dated 9th July 1975 supersedes all the previous Government Orders cited in the preamble to that order, including the G.O. dated 6th September 1969. The same para states that the order came into force with immediate effect, but makes only one exception i.e. in the matter of reservation already made in the cases of posts and services, for which advertisement had been issued prior to the coming into force of the G.O. dated 9th July 1975. This means that except in the matter of reservations made in posts for which applications had already been called for, in all other matters the provisions of the G.O. dated 9th July 1975 would apply. The words are clear that the intention is also clearly spelt out. Hence so far as the mode of selection is concerned, the one prescribed in Annexure II to the G.O., dated 9th July 1975 will have to be followed in respect of all selections made after that date either a literal construction or a harmonious construction of the various clauses of the G.O. dated 9th July 1975 leads to the above conclusion. For these reasons the Commission's view that in respect of posts already advertised prior to the issue of the Government Order dated 9th July 1975, the mode of selection prescribed in the earlier Government Orders and to be followed is not acceptable to Government.
9&10.xxxxxxxxxxxxx(Not reproduced here)
11. There is yet another aspect. of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of 'Various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.
(Emphasis supplied)
35. Later on, in that judgment, the Honble Apex Court had discussed the cases of B.N. Nagarajan v. State of Mysore, (1966) 3 SCR 682 : (AIR 1966 SC 1942), Y.V. Rangaiah vs. J. Sreenivasa Rao (1983) 3 SCC 284 as well as P. Ganeshwar Rao v. State of Andhra Pradesh 1988 Supp SCC 740 & A.A. Callon v. Director of Education (1983) 3 SCC 33. Thereafter in Para-13 & 14 the Honble Apex Court had held as follows:-
13. In Y. V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284: (AIR 1983 SC 852) similar question arose relating to recruitment by promotion. The question was whether promotion should be made in accordance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under (para 9 of AIR):
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of SubRegistrar Grade 11 will be according to the new rules on the zonal basis and not on the Statewise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
The same view was taken in P. Ganeshwar Rao v. State of Andhra Pradesh, 1988 Supp SCC 740: (AIR 1988 SC 2068). Similar view was taken in A. A. Calton v. Director of Education, (1983) 3 SCC 33: (AIR 1983 SC 1143). It is a well accepted principle of construction that a statutory rules or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendra v. State of Karnataka, (1989) 4 JT 459: (AIR 1990 SC 405).
14. In the instant case, para 11 of the Government order dated 9th July 1975 made the Government's intention clear that the revised directions which were contained in that Government order would not apply to the selections in respect of which advertise~ merit had already been issued, therefore, the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 was not applicable to the selection for filling the 50 posts of Tehsildars pending before the Public Service Commission. We are, therefore, of the opinion that the select list including the additional list as prepared by the Commission and published in March 1976 was legaland valid and the State Government wrongly refused to approve the same. The State Government's Older dated 23rd April 1976 directing the Coommission to prepare fresh list in accordance with the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 was illegal, consequently the select list prepared afresh by the Commission pursuant to the directions of the State Government is not sustainable in law. Since the additional list prepared by the Commission contained the names of the appellants, they were entitled to appointment to the posts of Tehsildars. We accordingly allow the appeals set aside the order of the High Court and direct the State", Government to appoint the appellants to the posts of Tehsildars, on the basis of additional list published by the Commission on 18th March, 1975.
36. Therefore, it is very clear from the law as laid down above by the Honble Apex Court that once the process of recruitment has been set in motion, even if there is a change of Rules and Regulations for recruitment for the very same post, unless the legislative intent is clear that that change would operate retrospectively, that change can only be made applicable to the future processes of recruitment for the same post, and not for the process of selection already set in motion.
37. In the case cited by the respondents before us, which related to promotions, and not direct recruitments, the Honble Delhi High Court had in Para-12 stated that if a conscious decision is taken not to fill up the vacancies till the rules are amended, it will be permissible for the appointing authority to defer filling up the vacancies till the rules are amended. But, that ratio was not intended to apply for the processes of direct recruitments notified already. That case related only to where the promotional vacancies were available, but the Government decided not to fill up those promotional vacancies till the Recruitment Rules in respect of those promotional vacancies were amended, and, in such circumstances, even in the light of the two cited judgments of the Honble Apex Court, it would be permissible for the appointing authority to defer the filling up of the promotional vacancies till the Rules are amended.
38. In the instant case before us, the Recruitment Rules have never been amended, even till today. There is only a proposal to amend the Recruitment Rules in a particular manner, and that proposal has not yet been approved by the Respondents No.1&2, so as to make the amended Rules to become binding on Respondents No.3-UPSC, and Respondent No.3-UPSC has also pointed this out through their letter dated 19.11.2014, and returned the second fresh requisition of the Respondent No.2-ASI, asking the latter to submit the same under the Single Window System after having completed the process of amendment of the Recruitment Rules to the posts in question.
39. Therefore, in these circumstances, it is very clear that the case of Respondents No.1&2 in the instant case is much weaker than the case in N.T. Devin Katti & Ors. (supra), since there has been no amendment of the Recruitment Rules whatsoever, and the Recruitment Rules of 1985 are still applicable as on today also, and have not yet been properly amended, and the Respondents No.1&2 could not have, therefore, cancelled the process of recruitment already undertaken in the year 2010 at all. As had been laid down by the Honble Apex Court in N.T. Devin Katti (supra), the rights of the present applicants before us had crystallized on the date of publication of the Recruitment advertisement itself, and since they have not been affected by any subsequent Gazette Notification of any new amended RRs, those rights had become absolute also. The applicants before us had acquired vested rights for being considered in accordance with the relevant RRs, and the terms as contained in the relevant Advertisement for direct recruitment vacancies of Dy. S.As. They, therefore, cannot be deprived of that limited right, more so because there has been no amendment of the RRs at all, so far, during the pendency of the selection process, and nothing has changed, either prospectively or retrospectively. Also, because a cancellation Notification appears to have been issued only in respect of the 24 vacancies notified first, which is illegal as discussed above, and no cancellation Notification has been brought on record in respect of the 8 posts for direct recruitment notified subsequently, all actions of the respondents are declared as illegal.
40. Therefore, the action of the Respondents No.1&2 in asking the Respondent No.3 to cancel the process of recruitment initiated in 2010 & 2013 is set aside. The subsequent action of the Respondent No.3-UPSC in having issued the cancellation Notification in respect of only 24 out of 32 posts advertised is also set aside. The two results of 77 candidates, at Annexure A-3 dated 15.11.2011, and of 11 candidates, at Annexure A-5 dated 18.07.2013, declared by the Respondent No.3-UPSC, are ordered to have been revived, and Respondent No.3-UPSC is directed to revive and complete the process of conducting interviews, and complete the whole process of selection within two months, on the basis of the original requisition of Respondent No.2 itself, by applying the Recruitment Rules of 1985, which are the only RRs in vogue even as on today.
41. The OA is, therefore, allowed in the above terms, but there shall be no orders as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.