Central Administrative Tribunal - Delhi
Dr Venkateswaran V vs Union Public Service Commission on 14 March, 2024
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Item No. 11 (C-4) O.A. No. 849/2024
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 849/2024
Order reserved on: 04.03.2024
Order pronounced on: 14.03.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Dr. Venkateswaran V.
Grade - B
S/o Shri R. Veerappan
R/o WZ 864 B/2 Naraina Village, Delhi
New Delhi - 110028
...Applicant
(By Advocate: G Natarajan)
Versus
1. Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi - 110069
2. Secretary,
Department of Agriculture and Cooperation
Ministry of Agriculture
Krishi Bhawan,
New Delhi-110001
...Respondents
(By Advocate: Mr. R V Sinha with Mr. Amit Sinha for
Respondent No. 1; Mr. Awanish Kumar with Ms. Leelawati
for Respondent No.2)
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Item No. 11 (C-4) O.A. No. 849/2024
ORDER
Hon'ble Mr. Manish Garg, Member (J)
1. This matter was taken up for hearing at the admission stage itself.
2. While working with the Ministry of Food and Processing Industries, the applicant, who belongs to the OBC category, applied for the post of Extension Officer in the Department of Agriculture and Cooperation by way of direct recruitment, whereby the applicant was already working on deputation basis. His candidature was rejected by the respondents i.e. UPSC.
3. Subsequently, he filed OA No. 282/2015 which was disposed of by this Tribunal vide order dated 14.12.2016, directing the respondents to appoint the applicant to the said post with effect from the date of his appointment on deputation.
4. Post the order, the respondents approached the Hon'ble High Court of Delhi in WP No. 3253/2017 - UPSC Vs. Dr. Venkateswaran V., whereby the aforesaid order of this Tribunal was set aside vide order dated 23.11.2022. 3
Item No. 11 (C-4) O.A. No. 849/2024
5. The Hon'ble High Court directed UPSC to reconstitute a Selection Board, for assessing the suitability of the applicant for the post in question.
6. In accordance with the order of Hon'ble High Court, respondents considered the candidature of applicant for the said post where he failed to get selected for the said post as he fell short of the cut marks required to ensure his selection.
7. After exhausting all other legal remedies available to the applicant, this instant OA has been filed, seeking the following relief(s):-
"(i) Call for the records of the case;
(ii) To direct the Respondent No. 1 to reconsider the applicant's candidature for selection for the post of Extension Officer under direct recruitment based on his higher qualifications, experience gained in the very same post but on deputation basis and also considering the expert opinion of ICAR- CIPHET that food processing is an integral part of agriculture and applicable in case of agriculture extension also.
(iii) Direct the Respondent No. 1 to reconsider the Applicant for the post of Extension Officer from the date of appointment to the same post on deputation basis.
(iv) Grant any other relief which the Hon'ble Tribunal may deem appropriate for the benefit of the Applicant and in the interest of justice."
8. Learned counsel for the applicant, states that the Order of the Hon'ble High Court specifically directed that the Selection Board should take into account the experience gained by the applicant while working on 4 Item No. 11 (C-4) O.A. No. 849/2024 deputation, while assessing the applicant for the said post. However, they awarded him only 43 marks against the 45 marks required for being selected.
9. Learned counsel for the applicant draws attention to Para Nos. 13 and 14 in OA No. 282/2015, dated 14.12.2016, wherein the Tribunal has stated that there is no reason for the respondents to take the stand that experience of extension work in the area of food processing will not count for agriculture extension experience. The same is reproduced below for clarity:-
"13. From the facts and documents placed on record, there is no doubt that the applicant is far more qualified and far more experienced than respondent no.3. The applicant is also a Ph.D in Food Biotechnology. A Research Associate or Senior Research Fellow is not appointed by NAIP to do extension work. The respondents have also not been able to demonstrate in any way how a research fellow or research associate experience is construed to be experience in extension work. Prima facie, it is not.
14. From the reply dated 30.09.2015 from CIPHET, it becomes clear that food processing is an integral part of agriculture and extension services rendered in the field of food processing is a part of agriculture extension. Therefore, there is no reason for the respondents to take the stand that experience of extension work in the area of food processing will not count for agriculture extension experience. Furthermore, we do not accept the argument of the learned counsel for the respondents that the applicant is seeking benefit of negative equality by stating that if the respondents have found his experience to be valid and appointed him on deputation basis to the post of Extension Officer, then there is no reason to hold him lacking in experience for direct recruitment post for the simple reason that both the decisions have been taken at the same time and the respondents action, therefore, appears to be completely whimsical, which cannot be sustained."5
Item No. 11 (C-4) O.A. No. 849/2024
10. He further draws strength from the reply of the CPIO, ICAR-CIPHET dated 30.09.2015 placed at Annexure A-6 (page 34), wherein, the applicant had sought clarification on the subject. The expert opinion so relied upon is also reproduced below:-
"i) Please clarify whether Food Processing is a part of Agriculture or not? If yer, kindly provide relevant literature on it. If not - Why? Give Reasons.
- Food processing is an integral part of agriculture. It relates to the post-production handling, processing and value addition to agriculture produce. ICAR-CIPHET, Ludhiana has developed a number of technologies related to processing and value addition to agriculture produce particularly for food purposes. The details are available at the institute website www.ciphet.in"
He states that, in view of the above, there can be no confusion whatsoever as to the experience of the applicant and he should have been awarded full marks, ensuring his selection as Extension Officer.
11. Learned counsel for the respondents, vehemently opposes the grant of relief in the present OA. He states that the same is not maintainable as the Hon'ble High Court granted relief(s) to the extent of considering the candidature of the applicant. He preferred an SLP(C) No. 3805/2024, wherein following order was passed:-6
Item No. 11 (C-4) O.A. No. 849/2024
"ORDER
The order impugned is against the judgment of the High Court dated 23.11.2022, as per which the Union Public Service Commission (UPSC) was directed to reconsider the claim of the petitioner. On 07.07.2023, UPSC in fact considered the candidature of the petitioner and rejected the same. It is this order which needs to be challenged but the Special Leave Petition is filed against the main judgment of the High Court dated 23.11.2022 which has worked itself out.
In the above circumstances, we permit the petitioner to withdraw the instant petition in order to challenge the said order dated 07.07.2023 if the petitioner so chooses.
Accordingly, Special Leave Petition is dismissed as withdrawn."
12. In rejoinder to the arguments put forth by the learned counsel for the respondents, it has been orally argued that since the candidate who had secured more marks than the applicant has resigned from the said post, the applicant has a preferential right to be considered for the said post.
13. ANALYSIS 13.1 The respondents complied with directions of the Hon'ble High Court. The candidature of the applicant was rejected by a Selection Board composed of expert advisors in the field.
13.2 The liberty was granted to the petitioner to withdraw the instant petition in order to challenge the said order dated 07.07.2023, if he so chooses. On bare perusal of the relief(s) sought in the present OA, we find that there is no 7 Item No. 11 (C-4) O.A. No. 849/2024 challenge to order dated 07.07.2023. The challenge to said order is yet to see light of the day in the present OA. 13.3 We also find that much reliance has been placed on RTI reply dated 22.8.2023. For the sake of brevity, we re- produce as under:-
"To Dr. Venkateswaran V. No.12/21, First Floor, Front Side, Near Anand Dairy, Subhash Nagar, West Delhi-110027 Subject: Information under RTI Act, 2005-reg.
Sir, I am to refer to your RTI application (Reg. No.UPSCM/R/E/23/04505) dated 23.07.2023 and to furnish the information as under:
I. Reply to Point No.1:- The details of Interview Board are not disclosed in compliance with Orders of Hon'ble Supreme Court in Civil Appeal No.9052 of 2012 [arising out of SLP (C) No.20217 of 2011] , filed by BPSC Vs. Saiyed Hussain Abbas Rizwi & Anr.
II. Reply to Point No.2:- No such information regarding criteria fixed by the Interview Board, exists in our record. The requested information in respect of candidate's marks is already available in public domain (https://ipsconline.nic.in/oramarks/ vacancy_marks .php).
III. Reply to Point No.3:- No such information exists in our record.
IV. Reply to Point No.4 & 5:- The Interview Board Assessment Report for the interview held on 07.07.2023 is enclosed.
V. Reply to Point No.6:- No such information exists in our record.
VI. Reply to Point No.7:- In 2013, Dr. Venkateswaran V was not shortlisted for the interview as experience in the field of agricultural extension work was considered for the 8 Item No. 11 (C-4) O.A. No. 849/2024 post and he had claimed experience in land use survey and Food Processing Industry which was not considered agricultural extension work. On 07.07.2023, he was called to comply with the direction dated 23.11.2022 of Hon'ble High Court, Delhi in WP No.3253/2017 filed by UPSC. Further it is informed that Under RTI Act, 2005, CPIO is not mandated to provide the reason for the actions of the Public Authority but to provide the information in the form it is available in the record.
2. In case you are not satisfied with the reply, you may prefer an appeal within 30 days of receipt of this reply to the First Appellate Authority Shri L.N.Lal, Joint Secretary (R-1), UPSC, Dholpur House, Shahjahan Road, New Delhi-
110069.
Yours faithfully, (PRIYANKA KUMARI) UNDER SECRETARY & CPIO UNION PUBLIC SERVICE COMMISSION F.1/113(04)/2013-R.V INTERVIEW BOARD ASSESSMENT REPORT A direction in WP No.3253/2017 titled as "UPSC Vs. Dr. Venkateswaran V." was passed by the Hon'ble High court Delhi on 23.11.2022. The relevant para of judgement dated 23.11.2022 is as under:
"In view of the above, the impugned order dated
14.12.2016 is set aside to the limited extent that it directs appointment of respondent No.1. The petitioner is directed to re-constitute a Selection Board for assessing the suitability, eligibility and merit of respondent No.1 to the said post. If found suitable, consequential directions be issued by the Competent Authority in accordance with law.
7. Petition is disposed of in the above terms."
2. In compliance of the judgment dated 23.11.2022, the Interview Board was convened on 07.07.2023 to assess the suitability, eligibility and merit of Shri Venkateswaran V. (Roll No.190, OBC) for recruitment to 2 posts (UR-1, OBC-1) of Extension Officer, Directorate of Extension, Department of Agriculture & Cooperation, Ministry of Agriculture (Advt. No.08/2013).
3. The Interview Board awards 43 (Forty Three) marks to Shri Venkateswaran V. (Roll No.190, OBC). 9
Item No. 11 (C-4) O.A. No. 849/2024
4. The following Advisors/Experts were present to assist the Board in its deliberations:
i. -----(not legible) ii. ----- (not legible) PRESIDENT 07.07.2023 This need not be referred to the full Commission."
13.4 The RTI information cannot be the basis to challenge the non-selection of the applicants. The right to be considered may be a valuable right, which has been duly accorded to the applicant.
13.5 Without attributing malafide or bias on the part of Selection Board cannot be a ground to lay challenge to the same. The merit based on interview after going through the said process, it does not lie in the mouth of the applicant to seek appointment as a matter of right.
13.6 There was also a stipulation in terms of the email dated 16.6.2023, which reads as under:-
"5. The fact that you have been called for interview by the Commission does not guarantee your selection for appointment or that your demand for a higher starting salary, if any, will be supported by the Commission in case, you are selected for appointment. The initial pay of a candidate already in Central Government Service will be fixed ordinarily in accordance with the rules on the subject."
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Item No. 11 (C-4) O.A. No. 849/2024 13.7 In Civil Appeal No. 4960/ 2021 (Arising Out Of SLP (C) No. 13285 Of 2014) Commissioner Of Police Vs. Raj Kumar decided on 25.08.2021, the Hon'ble Apex Court held:
"26. Courts exercising judicial review cannot second guess the suitability of a candidate for any public office or post. Absent evidence of malice or mindlessness (to the materials), or illegality by the public employer, an intense scrutiny on why a candidate is excluded as unsuitable renders the courts' decision suspect to the charge of trespass into executive power of determining suitability of an individual for appointment. This was emphasized by this court, in M.V. Thimmaiah v. Union Public Service Commission held as follows:
"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion ... xxxxxxxxxxxxxxxx
30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection."11
Item No. 11 (C-4) O.A. No. 849/2024
27. In Dalpat Abasaheb Solunke v Dr. B.S. Mahajan, this Court held that "12. ... it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. ... in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
28. Again, in Union Public Service Commission v. M. Sathiya Priya it was iterated that:
"The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee."
29. Public service - like any other, pre- supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service. Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides.
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Item No. 11 (C-4) O.A. No. 849/2024
30. The High Court's approach, evident from its observations about the youth and age of the candidates, appears to hint at the general acceptability of behaviour which involves petty crime or misdemeanour. The impugned order indicates a broad view, that such misdemeanour should not be taken seriously, given the age of the youth and the rural setting. This court is of opinion that such generalizations, leading to condonation of the offender's conduct, should not enter the judicial verdict and should be avoided. Certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security.
31. For the foregoing reasons, this court hereby sets aside the common impugned judgment and the orders of the CAT, quashing the orders issued by the appellant, declining appointment to the respondent candidates. The appeals are accordingly allowed, without any order on costs."
14. CONCLUSION In view of above observations, we do not find any infirmity in the selection process. We, therefore, reject the present OA being devoid of merit. No costs.
15. Pending MA(s), if any, shall also stand disposed off.
(Anand S. Khati) (Manish Garg) Member (A) Member (J) /ss/