Rakesh Kumar vs The Chairman, Staff Selection ...
2010 Latest Caselaw 2475 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.10857/2009

%                          Date of Decision: 10.05.2010

Rakesh Kumar                                            .... Petitioners
                       Through Mr.K.Venkatraman, Advocate.

                                   Versus

The Chairman, Staff Selection Commission &                .... Respondents
Anr.
                Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 NO
3.    Whether the judgment should be reported                NO
      in the Digest?



ANIL KUMAR, J.

*

The petitioner has impugned the order dated 4th May, 2009

passed by Central Administrative Tribunal, Principal Bench in O.A

No.1968/2006 titled as Rakesh Kumar v. Chairman, Staff Selection

Commission dismissing the original application of the petitioner

challenging the selection to the post of Assistant Archeologist and

seeking a direction to the respondent to appoint the petitioner on the

post of Assistant Archeologist on the ground that he is fully qualified for

the said post.

The petitioner had applied for the post of Assistant Archeologist

which was advertised in the employment news by the Staff Selection

Commission. 56 posts were advertised and the appointment to the post

of Assistant Archeologist were made on the basis of interview of the

candidates.

The petitioner had challenged the process of selection on the

ground that many of the candidates were less qualified to the applicant

and selection only on the basis of the interview was contrary to the law

laid down by the Supreme Court and the High Court.

The petitioner asserted that he has a degree of Master of

Philosophy (History) from Kurukshetra University and he had studied

four papers of Archeology in his Post Graduate course. He also alleged

that he participated in the national workshop on computer applications

in Archeology. He also contended that he obtained a Post Graduate

diploma in Archeology from the Institute of Archeology and he also

participated in various training programmes.

The post of Assistant Archeologist which was advertised

prescribed the educational qualifications which are as under:-

Educational Qualification:-

Masters Degree in Ancient or Medieval Indian History from a recognized University or equivalent, or,

Post Graduate diploma in Archeology from the institute of Archeology or equivalent;

Desired qualification:-

Experience in archeological filed work for a minimum period of one year.‖

On the basis of the applications received, candidates were

interviewed. The petitioner also participated in the interview and the

result of the interview was published on 19th May, 2006, however, the

petitioner was not selected. The petitioner challenged his own selection

only on the basis of interview relying on Indra Prakash Gupta v. State of

Jammu & Kashmir & Ors, 2004(5) Scale 90 and Satpal and Ors v. State

of Haryana & Ors, 1995 Suppl. (1) SCC 206 contending that not more

than 25% marks should be kept for the interview. The petitioner also

asserted that candidates who had done only one year diploma in

Archeology had been selected by the respondent. The petitioner also

alleged that the relatives of the Director, Archeological Survey of India

had been appointed. Selection process was also challenged on the

ground that only 42 posts out of 66 posts have been filled up and only

56 vacancies have been notified.

The petition was contested by the respondent contending inter-

alia that petitioner appeared in the interview being fully aware of the

selection process that the selection is based only on interview and if he

has not been selected he could not challenge the process of selection.

Regarding not more than 25% weightage for the interview it was

contended on behalf of respondent that since there was no written

examination or any other process of selection, selection on the basis of

interview only could not be challenged by the petitioner. The respondent

also distinguished the judgments relied on by the petitioner on this

ground. Regarding not filling of the posts it was contended that 28 posts

had been advertised for general category and all the posts of general

category in which the petitioner had also applied being a general

category candidate has been filled up and some of the posts have not

been filled up in the reserved category as suitable candidates were not

available.

The pleas and contentions of the petitioner of not selecting the

suitable candidate was also contested on the ground that the minimum

educational qualification was one year post graduate diploma and

consequently the petitioner could not contend that persons not having

minimum educational qualification has been selected, as persons with

one year diploma were selected.

The Tribunal after hearing the pleas and contentions of the

parties has repelled the contention of the petitioner. Reliance was

placed on Union of India v. S.Vinodh Kumar & Ors, (2007) 8 SCC 100

holding that a candidate who had taken part in the selection process

knowing fully well the procedure laid down there, is not entitled to

question the same. Reliance was also placed by the Tribunal on

Munindra Kumar v. Rajiv Govil, 1991(3) SCC 368 and Rashmi Mishra v.

M.P.Public Service Commission, (2006) 12 SCC 724. In Union of India

Vs S.Vinodh Kumar the Supreme Court in para 18 & 19 at page 107

had held as under:

―18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368.) (See also Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC

724.)

19. In Chandra Prakash Tiwari v. Shakuntala Shukl (2002) 6 SCC 127, it was held: (SCC p.148, para 32) ―32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status -- the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhavan pertaining to the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla13 a three-

Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without

protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.‖

In the circumstances, the findings of the Tribunal that the

petitioner cannot be permitted to challenge the process of selection

after participating in the same and impugning it after he has not

been selected cannot be faulted. The petitioner shall not be entitled

for any relief in the facts and circumstances and he cannot be

permitted to contend that the selection to the post of Assistant

Archeologist is vitiated.

The Tribunal distinguished the case of Praveen Singh v. State of

Punjab (Supra) and relied on Mahesh Kumar and Anr v. Union of India

and Ors, 151 (2008) DLT 353 to contend that the authority which is

making recruitment is fully entitled to evolve its own procedure for

selection and it cannot be said that the selection made solely on the

basis of an interview would have so much of element of subjectivity that

such a selection would be unreliable. The Tribunal noticed that if the

selection is in an academic course it would be more meaningful if it is

based on written test, however, the same could not be said about the

selection for a post in the Government or under some other

organization. The Tribunal also considered various judgments of

Supreme Court and distinguished the same and noticing that in the

case of petitioner the mode of selection was not written examination

and that for the post of Assistant Archeologist the selection was made

through interview only and thus the selection solely by interview could

not be held to be contrary to any provisions in the recruitment rules for

the post or contrary to anything stated in the advertisement. The

Tribunal also repelled the contention that the weightage of more than

25% to the interview could be given. Since there was no written

examination, it was held that the weightage to interview could not be

restricted to 25% of marks. The Division Bench of this Court in the case

of Mahesh Kumar & anr. vs Union of India & ors, LPA no. 346 of 2008

decided on 12th March, 2009 had approved the selection of candidates

for the post of Security Assistant Grade -II in the Rajya Sabha

Secretariat on the basis of minimum 50% marks in the interview

though the selection process involved written examination, physical

examination and physical efficiency test.

The learned counsel for the petitioner has contended that the

selection process is tarnished on account of relatives of the employees

of the Director, Archeological Survey of India being employed, however,

the learned counsel for the petitioner is unable to give any specific

instance where any of the persons selected is a relative of the employees

of Director General of Archeological Survey of India and/or he or she

does not have minimum educational qualification required for the

selection. In the circumstances, the plea of malafides cannot be

accepted.

The learned counsel for the petitioner also made a half hearted

attempt regarding not filling of the posts. The learned counsel, however,

has not been able to deny that there are 28 unreserved posts and all the

posts have been filled. This is also not disputed that the petitioner had

applied for unreserved posts. The plea of the learned counsel for the

respondent that the reserved posts could not be filled on account of

unavailability of suitable persons cannot be repelled. Consequently, on

account of selection of only 28 candidates for the post of Assistant

Archeologist, the entire selection process cannot be held to be vitiated.

The learned counsel for the petitioner is also unable to give a

single instance of a person who has been selected to the post of

Assistant Archeologist though not having the minimum educational

qualification. In the circumstances, merely on the basis of his

educational qualification, the petitioner cannot contend that the

selection process is vitiated or that he is more suitable for selection as

this Court does not have to sit over the decision of the selection body in

the facts and circumstances.

In the totality of facts and circumstances, the learned counsel for

the petitioner has not been able to make out any ground on the basis of

which it can be held that the order of the Tribunal suffers from such

illegality or irregularity or such perversity which shall necessitate any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition in the facts and

circumstances is, therefore, without any merit and it is dismissed.

ANIL KUMAR, J.

MAY 10, 2010                                    MOOL CHAND GARG, J.
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