Central Administrative Tribunal - Delhi
Pankaj Kothari vs M/O Health And Family Welfare on 19 April, 2024
1
O.A. No. 925/2017
Item No. 60(C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 925/2017
This the 19th Day of April, 2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
DR. PANKAJ KOTHARI Researcher Ayurveda)
AGED ABOUT 33 YEARS,
S/O PUNAM CHAND KOTHARI,
R/O VILLAGE & P.O. TANODIA
DISTRICT AGAR-456443 (M.P.)
....Applicant
(By Advocate : Mr. Tnomaj George with Mr. Sidharth Joshi)
VERSUS
1. UNION OF INDIA
Through its Secretary Ministry of AYUSH Ayush Bhawan,
B-Block GPO Complex, INA Colony, New Delhi-23
2. Central Council for Research In Ayurvedic Sciences
(CCRAS) Through its Director General Jawahar Lal Nehru
Bhartiya Chikitsalay Avm Homeopathy Anusamdhan
Bhawan, 61-65, Institutional Area Opposite 'D' Block,
Janakpuri, New Delhi
.... Respondents
(By Advocate : Mr. Shaswat Sharma )
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O.A. No. 925/2017
Item No. 60(C-4)
ORDER (ORAL)
Hon'ble Mr. Manish Garg, Member (J) By virtue of the present OA, the applicant is seeking the following relief;
"i. Quash / Set aside the selection made through impugned advertisement bearing no. 04/2015 and direct the respondents to appoint the applicant on the post of Research Officer (Ayurveda).
ii. To issue direction to the respondents to produce the records related to advertisement bearing no. 04/2015.
iii. To issue the directions to the respondents to publish the entire records.
iv. To pass further consequential orders in favor of the applicant.
V. Pass such other and further orders in favor of the applicant and against the respondent which this Hon'ble Tribunal may deem fit and proper in the interest of justice."
2. Learned counsel for the applicant states that the online examination/written examination for the post of Research Officer was conducted by the respondents, in which the applicant admittedly participated. 2.1 Vide office memorandum bearing no. F.No. 2-8/2015- CCRAS/Rectt. Vol- III dated 17/06/2016, Notice F.No.2- 8/2015-CCRAS/ Rectt. Vol. III dated 23/06/2016 was issued by respondents, whereby the date of document verification and interview related to recruitment of Research Officer was provided, which was also admittedly carried out and cleared by the applicant.
3O.A. No. 925/2017 Item No. 60(C-4) 2.3 The applicant was also provided the interview call letter. Change of answers to the Question IDs by the respondents had called for a further 50 candidates for an interview whose names were not published in the office memorandum dated 17.6.2016. Backdoor entries were confirmed from the final selected candidate panel, as 8 of the final selected candidate names were not stated in the office memorandum dated 17/06/2016.
2.4 Dr. Pankaj Kumar Mishra was informed by the respondent under RTI, dated for the first time that the cutoff mark in the written test was fixed as follows:
Unreserved: 35%
OBC: 35%
SC: 25%
ST: 25%
2.4 He further states that on 13.01.2017 RTI was
filed by Dr. Pankaj Kothari raising objections with respect to the answers of 7 Question, but no reply to the same was given by the authorities.
2.5 The learned counsel for the applicant relies upon the decision rendered by Hon'ble Supreme Court in the matter 4 O.A. No. 925/2017 Item No. 60(C-4) of Hemani Malhotra V/s. High Court of Delhi in WP (C) 490/2007 and K.Manjusree V/s State of A.P. and Anr. in Civil Appeal No. 1313/2008 and further he relies upon another decision of Hon'ble high Court of Delhi in the matter of Kuldeep Singh and Anr. V/s. DSSSB and Anr in WP (C) 5650 and 5651/2004
3. Learned counsel for the respondents draws attention to counter reply and submits that the contents of the present application are deemed misconceived, untenable, and wrong, and are therefore denied.
3.1 It is contended that the application itself is liable to be rejected at the very threshold. It may be submitted that objections raised by the candidates, including the applicant, have been addressed by the Agency which conducted the online Computer Based Test for the post of Research Officer (Ay.).
3.2 The objections raised by the applicant regarding question ID Nos. 3228774004, 3228774009, 3228774019, 3228774020, 3228774033, and 3228774037 were also examined, but no changes were found in those questions. 3.3 Moreover, it is submitted that the process regarding the selection of Research Officer (Ayurveda) has already 5 O.A. No. 925/2017 Item No. 60(C-4) been completed, and all the selected candidates have assumed their respective posts as decided by Respondent No. 2. Hence, raising this issue by the Applicant regarding various questions at this juncture is untenable, and the present application is liable to be dismissed. 3.4 It is submitted that the Recruitment Agency, having completed procedures as advertised, returned all the relevant records duly signed to Respondent No. 2 for further necessary action. Hence, there is no scope for tampering with the same.
3.5 The results were made available on the website/internet, and thereafter, necessary offer of appointments were issued to the selected candidates. For the aforementioned reasons, this Hon'ble Tribunal would not like to interfere in the present case at this stage. 3.6 Though the pleadings list of dates indicating the alleged backdoor entry of 14 persons, no such grounds have been raised in the present OA.
3.7 The learned counsel for the applicant relies on RTI information, which cannot be the basis for adjudicating upon the present case.
6O.A. No. 925/2017 Item No. 60(C-4) 3.8 Learned counsel for the respondents further relies upon the judgment of the Hon'ble Supreme Court in Civil Appeal No. 2164-2172 of 2023, in the matter of Tajvir Singh Sodhi & Ors. v/s The State of Jammu and Kashmir & Ors.
4. Having considered the arguments presented by both parties and perused the records, the contentions are hereby revived.
5. Analysis 5.1 Upon a bare perusal of the pleading, we find that all grounds raised in the present OA pertain to certain questions, and the answers to the same.
5.2 The Courts or Tribunal are not vested with the power to examine the correctness of these questions; rather, this discretion is to be left to the executive, which in turn must be decided by experts as to whether the objections made by the applicant are valid or not.
5.3 Even we find on the pleadings thereto that no representation qua the allegation or either malafide or wrong questions have been made prior to approaching this Tribunal.
7O.A. No. 925/2017 Item No. 60(C-4) 5.4 We also very interesting to know that though it has been contended a back door entries have been made as many as 50 candidates have been selected call for interview back door however, no records or material placed on record nor any ground raised in the present OA.
5.5 During the course of arguments, learned counsel for the applicant admitted that 8 out of the 50 selected candidates have not been impleaded as respondents. It needs to be adjudicated whether they were granted offers of appointment and joined the services of the respondents in contravention of the Rules. Reliance is placed on the decision rendered by the Hon'ble Supreme Court in the matter of Hemani Malhotra V/s. High Court of Delhi in WP (C) 490/2007, relevant para of the same reads as under:-
"9. 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. 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.
10. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 8 O.A. No. 925/2017 Item No. 60(C-4) as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent.While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v.
Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above.On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.
11. At this stage this Court notices that as per the information supplied by the respondent to the petitioners under the provisions of Right to Information Act, the petitioner in Writ Petition Civil No. 490/2007 had secured 142 marks out of 250 prescribed for the written test and 363 marks out of 750 marks in vive-voce test, whereas the petitioner in Writ Petition No. 491/2007 had secured 153.50 marks out of 250 marks in the written test and 316 marks out of 750 marks in vive-voce test. There is no manner of doubt that the prescription of 750 marks for vive-voce test is on higher side. This Court further notices that Honble Justice Shetty Commission has recommended in its Report that The vive- voce test should be in a thorough and scientific manner and it should be taken anything between 25 to 30 minutes for each candidate. What is recommended by the Commission is that the vive-voce test shall carry 50 marks and there shall be no cut off marks in vive-voce test. This Court notices that in All- India Judges Association and ors. V. Union of India and Ors. (2002) 4 SCC 247, subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission (supra) were accepted by this Court. It means that prescription of cut off marks at vive-voce test by the respondent was not in accordance with the decision of this Court. It is an admitted position that both the petitioners had cleared written examination and therefore after adding marks obtained by them in the written examination to the marks obtained in the vive-voce test, the result of the petitioners should have been declared. As noticed earlier 16 vacant posts were notified to be filled up and only five candidates had cleared the written test. Therefore, if the marks obtained by the petitioners at vive-voce test had been added to the marks obtained by them in the written test then the names of the petitioners would have found place in the merit list prepared by the respondent. Under the circumstances, this Court is of the opinion that the petitions filed by the petitioners will have to be accepted in part.
12. For the foregoing reasons both the petitions succeed. The respondent is directed to add the marks obtained by the petitioners in the written 9 O.A. No. 925/2017 Item No. 60(C-4) examination to the marks obtained by them in the vive-voce test and prepare a combined merit list along with the other selected candidates. The respondent is directed to amend the notice dated April 10, 2007 issued by the Registrar (Vig.), High Court of Delhi, New Delhi and declare the petitioners as selected for being recommended for appointment to the post in Delhi Higher Judicial Service. It is clarified that the petitioners would neither be entitled to, seniority or salary with retrospective effect. Their seniority shall be reckoned from the date of their appointment and salary as allowable be paid from that date only. Rule is made absolute accordingly in each petition. There shall be no order as to cost."
5.6 We find that reliance placed to the above-mentioned judgment is misplaced in the factual matrix of the present case. In Hemani Malhotra (Supra), the issue for adjudication was revolved around for purposes of selection what would be minimum marks for the viva voce as well as qualifying written examination, whereas it is not even the contention of the applicant herein that he did not qualify the written examination and was not permitted to participate in the interview process. Merely participating in the selection process after qualifying the written examination and not being selected does not give the applicant the right to agitate his grievances solely based on RTI information. He further relies on the decision rendered in K.Manjusree (Supra), relevant para of the same reads as under:
"32. We therefore, find that the judgment of the Division Bench of the High Court has to be set aside with a direction to the AP High Court to redraw the merit list without applying any minimum marks for interview. The merit list will have to be prepared in regard to 83 candidates by adding the marks secured in written examination and the marks secured in the interview. Thereafter, separate lists have to be prepared for each reservation category and then the final selection of 10 10 O.A. No. 925/2017 Item No. 60(C-4) candidates will have to be made. The scaling down of the written examination marks with reference to 75 instead of 100 is however, proper."
5.7. In the said decision ie K.Manjusree (Supra), it is also not applicable to the facts and circumstances of the present case. In that case, the decision was to re-draw the merit list without applying the minimum marks for the interview in question. Furthermore, the reliance placed on the case of Kuldeep Singh and Anr. (Supra) also pertains to minimum qualifying marks, which was not specified. Here, admittedly, even in the RTI information, it has been highlighted that there were cutoff marks for UR (35), OBC (35), SC, and ST (25) in the written test. Moreover, as highlighted above, the applicant has already been selected for the written test. Based on the cutoff as per the advertisement, i.e., the written test, the applicant qualified, although he could not qualify for the interview. Lastly, reliance is also placed on the case of Shikha Arora (supra).In the said case the number of vacancies 563 out of which 400 persons were appointed and there was a gap of filling up the vacancies in the background petitioners have secured rank 411 marks. In the present case even the applicant has not qualified after participating in selection process in the interview.
11O.A. No. 925/2017 Item No. 60(C-4) 5.8 We are also of the view that the Hon'ble Apex Court in the case of Tajvir Singh Sodhi (supra) wherein having considered a number of earlier decisions, it was held by this Court that:-
"69. It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence." (See Also : CIVIL APPEAL NO. 14524 OF 2015 UNION OF INDIA & ORS VERSUS AIR COMMODORE NK SHARMA (17038) ADM/LGL . decided on 14.12.2023 (SC))
6. CONCLUSION In view of the above, we fail to appreciate the arguments of the learned counsel for the applicant, we dismissed the OA and no interference is called off. No order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/arti/