Delhi High Court
Vikas Saksena vs Union Of India And Others on 13 September, 2010
Author: Gita Mittal
11 & 12
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.2674/2010
Date of Decision : 13th September, 2010
%
VIKAS SAKSENA ..... Petitioner
Through: Mr. Ajay Kumar Porawali, Adv. with
versus
UNION OF INDIA AND OTHERS ..... Respondents
Through: Mr. A.K. Bhardwaj, Adv. with
Mr. A.K. Chauhan, DIG, Chief Law
Officer, Coast Guard.
Commandant G. Singh.
AND
+ W.P.(C)No.4390/2010
NAGENDER SINGH ..... Petitioner
Through: Mr. G.D. Gupta, Sr. Adv. with
Mr. Yashpal Rangi, Adv.
versus
UOI AND ORS ..... Respondents
Through: Mr. A.K. Bhardwaj, Adv. with
Mr. A.K. Chauhan, DIG, Chief Law
Officer, Coast Guard.
Commandant G. Singh.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
GITA MITTAL, J. (Oral)
1. These two writ petitions lay a challenge to the change in
the selection process effected by the respondents for
appointments to the post of Deputy Commandant (Law) in the
Indian Coast Guard Service after the notified process stood
completed and was at the stage of medical examination of the
successful candidates. The petitioners also assail the denial of
appointment to the said post to them despite their having
admittedly successfully qualified in the notified selection
process.
2. The undisputed facts giving rise to the writ petitions are
noted hereafter. The respondents had issued an advertisement
dated 12th November, 2009 inviting applications from Indian
citizens for several posts including the posts of Deputy
Commandant (Law) at a pay scale of `15,600-39100 (revised)
with grade pay `6600/-.
3. So far as the procedure of selection was concerned, the
advertisement has notified the applicants as follows:-
"SELECTION PROCEDURE
(a) Short listed candidates will be called for
selection test/interview at CGSB, Noida (UP).
Candidate's excellence in Academics, Sports and
NCC will be given due weightage whilst short
listing the candidates through call up letters by
Mid Dec 2009. Candidates who do not receive call
up letter may assume that they have not come in
the zone of short listing. Updated list of short
listed candidates will be hosted on ICG website.
(b) The selection process consists of two phases
(i) Preliminary Selection Board (PSB), It
consists of General Mental Ability Test in
which the candidates will be tested for
General Awareness, General Intelligence and
Reasoning.
(ii) Final Selection Board (FSB), It consists
of Psychological Test, Group Testing and
Interview (Personality Test).
(c) Selection will be made only on the basis of
performance of the candidate in FSB. Those
found medically fit will be placed in the merit list.
The candidates who qualify in the merit list vis-à-
vis number of vacancies available will be issued
with appointment letter.
(d) Medical examination will be held at Delhi."
(underlining by us)
4. Shri Vikas Saxena, petitioner in WP(C)No.2674/2010 and
Shri Nagender Singh, Petitioner in WP(C)No.4390/2010 had
fulfilled the eligibility requirements and submitted applications
for undergoing the selection process and appointment to the
said post pursuant to the advertisement dated 12th November,
2009. Their applications were found in order resulting in
issuance of a call letter dated 3rd December, 2009 to Shri Vikas
Saxena and a call letter dated 30th November, 2009 to the other
writ petitioner for appearance before the preliminary and final
selection board. The directives contained in this letter as well
have a bearing on the issue raised before this court and read as
follows:-
"4. Only those candidates who are qualified in
Preliminary Selection Board (PSB) will appear in
Final Selection Board (FSB) from 13-17 DEC 2009
at Coast Guard Selection Board, Noida. Those
candidates who are finally recommended by FSB
will undergo medical examination."
(underlining by us)
5. It is noteworthy that the Preliminary Selection Board (PSB
hereafter) was conducted by the respondents from 10th
December, 2009 and was held for three days. Out of the total of
32 candidates who appeared in the Preliminary Selection Board,
only five candidates including the petitioners were
recommended for appearance in the final selection process. It is
an admitted fact that the Final Selection Board („FSB‟ hereafter)
was held between 13th and 17th December, 2009. Out of five
candidates who appeared in the Final Selection Board, three
candidates, again including the two petitioners, were declared
as successful.
6. In terms of the notified procedure, the Commandant (JG)
on 17th December, 2009 issued the medical examination forms
in the prescribed format to both the petitioners requiring them
to appear before the Base Hospital, Delhi Cantt. for the medical
examination, which was the only remaining step of the selection
procedure.
7. The petitioners have complained that after leaving the
premises of the Coast Guard Selection Board, they were
telephonically informed to have a word on 18th December, 2009
with the Chief Law Officer at the Coast Guard Head Quarter,
New Delhi. The submission is that as per the applicable and
prescribed procedure, the Chief Law Officer has no role in the
selection process for appointment to the post of Commandant
(Law).
8. In terms of this telephonic direction, the petitioners submit
that they reached the Coast Guard Head Quarter, New Delhi on
18th December, 2009 at 10:00 hrs. when they were directed to
return on 21st December, 2009. To their surprise on 21st
December, 2009, the petitioners were directed to appear before
a new selection board chaired by the Chief Law Officer and
undertake a written test as well as an interview on that very
day. The result of this new selection procedure was informed on
23rd December, 2009 when the petitioners were informed that
they had failed in the interview which had been conducted, and
consequently not selected.
9. The petitioners separately represented against the
procedure which had been adopted and the refusal of the
respondents to appoint them to the post for which they had
successfully undertaken the prescribed selection procedure.
Upon failure of the respondents to accept the representation of
the petitioners and do justice to them, Shri Vikas Saxena filed
WP(C)No.2674/2010 on or about 28th March, 2010 seeking a
declaration that the selection made by the respondents for the
post of Deputy Commandant (Law) is illegal, arbitrary and
violative of Article 14 and 16 of the Constitution of India and
issuance of the writ of mandamus quashing the selection made
by the respondents for the said post. A further prayer was made
for a direction to the respondents to make the selection in
accordance with the notified procedure and for completion of
selection in terms of the notified procedure and permit the
petitioner to undertake the medical examination.
10. We may note that along with the writ petition, the
petitioner has filed an application seeking interim orders against
the respondents to keep one post of Deputy Commandant (Law)
vacant so as to enable the petitioner to get appointment during
the pendency of the writ petition. When the writ petition came
up for hearing on 22nd April, 2010, notice was issued to the
respondents to show cause and so far as the stay application
was concerned, the following directions were made:-
"CM No.5342/2010 (Stay)
Notice. Mr. Gaurav Khanna, Advocate for
Union of India accepts notice.
It is directed that appointment, if any,
made by the respondents shall be subject to the
final outcome of the writ petition. The
respondents shall inform the appointees in terms
of the order passed by this Court during the
pendency of the writ petition.
Dasti to the parties."
11. Shri Nagender Singh has filed WP(C)No.4390/2010 shortly
thereafter also seeking directions to the respondents to act
upon the recommendation of the Final Selection Board in terms
of the advertisement dated 12th November, 2009 and to appoint
the petitioner to the post of Deputy Commandant (Law) in terms
of the notified norms and procedure with all consequential
benefits. In as much as these writ petitions raise identical
questions of law and fact, we have heard them together and
propose to decide them by the single judgment.
12. The petitioners have primarily made a grievance that the
respondents had no authority to change the selection process
mid way after its commencement and after the petitioners had
successfully undertaken the entire notified selection process.
Mr. G.D. Gupta, learned Senior counsel appearing for Shri
Nagender Singh has submitted that the petitioners had been in
fact recommended for appointment and, for this reason, only
the formality of the medical examination was remaining to be
undergone by them. In this behalf reliance has been placed
upon the forms in prescribed format for undergoing the medical
examination at the Base Hospital, Delhi Cantt. duly signed by
the Commandant which had been handed over to the petitioners
on 17th December, 2009.
13. The writ petitions are opposed by the respondents who
have filed counter affidavits taking an identical stand in the
matters.
14. So far as the procedure which was adopted on 21st
December, 2009 is concerned, the respondents have in the
counter affidavits stated that "the decision for appearance of
the candidates recommended by the final selection board for
the post of Deputy Commandant (Law) had been approved
before hand by the competent authority on 24th November,
2009." It is further stated that in this background, the three
candidates who had been selected in the final selection board
were required to appear before the Professional Competency
Board held at the Coast Guard Head Quarters on 21st December,
2009.
15. With regard to information to the candidates with regard to
the Professional Competency Board is concerned, in the counter
affidavit the respondents have stated that "before
commencement of PSB/FSB, the candidates who reported for the
Deputy Commandant (Law) selection were informed during the
inaugural address that those qualifying FSB will have to appear
before a Professional Competency Board (PCB) since Deputy
Commandant (Law) is a higher rank."
16. These assertions of the respondents have been
vehemently contested by both the petitioners who have on
affidavit submitted that no such information was given at any
stage till they were compelled to undergo the testing on 21st
December, 2009.
17. We may notice yet another plea which has been taken in
the counter affidavit. The respondents have further stated that
the board conducted the professional competency assessment
through a "short test of general law and basic maritime law,
followed by interview both aimed at assessing the professional
knowledge, legal awareness and suitability of candidate for
induction into the post of Deputy Commandant (Law)." A further
prescription that "it is expected that the candidates would score
at least 50% marks in the written test" is mentioned in the
counter affidavit.
18. It is an admitted position that in the advertisement which
had been issued on 12th November, 2009, the respondents did
not notify that candidates who were successful in the final
selection board would be required to appear before a further
professional competency board or the manner of its testing. No
syllabi or distribution of marks was also provided.
19. In view of the pleas which have been set up in the counter
affidavit, we called upon the respondents to produce the
relevant records. A file bearing No.RT/0103/FAST TRACK
captioned as "RECRUITMENT OF ASST COMDTS-FAST TRACK -
01/2010 BATCH" was produced before us. This file refers to the
advertisement which was issued for fast track selection of
Assistant Commandants of GD/GD P/N/CPL/Tech which had been
published all over India in national daily newspapers on 10th
November, 2009 and telecast on six T.V. channels.
Interestingly, there is not even a reference to any issue
involving Deputy Commandants in this file.
20. In this file, on 18th November, 2009, a Note 9 was recorded
by Shri Braj Kishore Commandant (JG) which included at Sl.No.3
the proposed schedule for the recruitment of Assistant
Commandants (Fast Track) commencing from the stage of the
last date of receipt of applications till the commencement of
basic training on 4th of January, 2010. At Sl.No.4, of Note 9 the
following was also proposed:-
"4. The Preliminary Selection Board of
officers for Fast Track Selection will
comprise of total 06 members (one set of
03 assessors including the President and 03
other members as nominated by the Admin
directorate). The Board will conduct written
test (GMAT-verbal and Non-verbal) as well
as Stage-I screening during the PSB. (10-12
Dec 09). On completion of PSB, the FSB
will be conducted at CGSB, Noida w.e.f. 13-
17 Dec 09."
The above schedule was recommended for the DDG‟s
approval on 20th November, 2009 by Shri B.K. Patasahani, DIG,
PD (HRD).
21. This file then went up to the Deputy Director General who
on 20th November, 2009 called upon the Chief Law Officer to
comment thereon. A noting of the Chief Law Officer (`CLO‟ for
brevity) made on 23rd November, 2009 was relied upon by the
respondents before us as the proposal for assessment by a
Professional Competency Board in the cases in hand and
deserves to be considered in extenso. The same reads as
follows:-
"Since candidates for Sl(e) of Encl 1A are for
higher rank, propose suitability be assessed by
professional board also in addition."
22. This proposal and the file was then on 24th of November,
2009 placed before the Deputy Director General who has
endorsed the following comments thereon:-
"Para 5 of noting 10, and C.L.O. proposal above
approved."
23. As noted above, this file relates to the selection for
Assistant Commandants only. Obviously this noting also refers
to the same selection. No other record was placed before the
Court. On the contrary, it was stated before us that the counter
affidavit is premised on this record.
24. In view of the noting dated 18th November, 2009 on which
this decision appears to have been taken, it is clearly evident
that there is no issue relating to selection of deputy
commandant (law) which was put up to the Deputy Director
General. Therefore, the averment in the counter affidavit to the
effect that the Proficiency Competency Board of those
candidates recommended by the FSB for the post of Deputy
Commandant (Law) had been approved by the competent
authority on 24th November, 2009 is not supported by official
record and is incorrect.
25. Certain further queries which arose during the hearing
could not be answered on behalf of the respondents and time
was sought to produce further record. It is only in the hearing in
the afternoon that the respondents placed file No.RT/0103/LAW
OFFICER captioned "RECRUITMENT OF LAW OFFICERS (DY
COMDT) - 01/2010 BATCH" before the court. It is unfortunate
that this record was not produced before this court in the earlier
hearing and appears to be an attempt to deliberately mislead
this court. We were not even informed that there is any other
record available on the issue.
26. The notings which have been made by the Commandant
(JG) on 18th December, 2009 with regard to the present selection
and thereafter on this file deserves to be considered in extenso
and reads as follows:-
"Extract of Advt for the Post of Dy. Comdt (Law)-
01/2010 Batch - 1A
1. Refer to Encl 1A.
2. It is submitted that the advertisement was
published for DY. Comdt (Law) as approved by the
competent authority. Total 168 applications were
received at CGSB. After scrutiny and vetting, 62 call
letters were issued. Only 05 candidates qualified PSB
(comprising GMAT) Verbal and Non Verbal and stage-1)
conducted 10-12 Dec 09 at CGSB Noida.
3. Out of these 05 candidates, 03 have
qualified during Final Selection Board (FSB) conducted
w.e.f. 13-17 Dec 09 at CGSB Noida as follows:
Sl.No. Name Roll No.
a. Vaishali Sood DLW/GEN/1592
b. Vikas Saxena DLW/GEN/1451
c. Nagender Singh DLW/GEN/1290
4. Since these candidates are likely to be
inducted at a relatively elevated level (Dy. Comdt) in
the Law branch It is opined that their professional
competence and suitability, may appropriately be
ascertained by the Directorate of Law, prior to sending
them for the medicals and issuance of appointment
letters.
5. Submitted for perusal and approval please.
Sd/-
(Brij Kishore)
Comdt (JG)
DD(Rectt)
18 Dec 09
I.Com: 3953"
27. It is evident from the above that no decision at all with
regard to any further testing of the persons who had
successfully qualified the final selection board for the post of
Deputy Commandant (Law) had been taken even till 18th
December, 2009. In fact, it is proposed for the first time then.
This matter travelled through various authorities in the chain of
command.
28. On the above proposal, we may note here the comments
of the Chief Law Officer dated 21st December, 2009 which read
as follows:-
"It is proposed to conduct a short test and
interview for judging professional competence, if
approved pl,
Sd/-
CLO
21 Dec 09"
It is clearly evident from the above that the proposal for
holding a test or interview for assessing professional
competency of the candidates was mooted for the first time only
on the 21st of December, 2009. The legal experts guiding the
functioning of the respondents would be expected to know the
well settled applicable legal principles with regard to change of
selection criteria and method after commencement of the
selection process laid down by the Supreme Court in the
plethora of judgments noticed herein as well as the
consequences of concealment of material records.
29. The record also shows that matter moved very fast on 21st
December, 2009. On the very same day, the Deputy Director
General proposed to constitute a Board (for the professional
competency testing) and recorded the following noting:-
"1. Further to note 2, it is proposed to constitute a
Board (for Professional Competency Test) comprising
of following officers.
Sl.No. Rank Name No.
a. DIG AKS Chauhan (0161-P) - President
b. Comdt. SS Malik (5002-Q) - Member
c. Comdt. Donny Michael (0258-L) - Member
2. If approved, the Board is required to assemble on
21 Dec 09, at CGHQ. The BPs along with
recommendations to be submitted by 22 Dec 09 to
facilitate medical examination of successful
candidates.
3. Submitted for perusal and approval please.
Braj Kishore
COMDT.(JG)
4082.C
DD(Rectt)
21 Dec -09
I. Com 3953"
30. The above narration of facts also would show that there
was no decision at all to conduct any further test of the
candidates till 21st December, 2009. So far as the approval of
this proposal is concerned, the file would disclose that the
matter was not placed before any higher authority and the
entire decision to conduct the professional competency test and
suitability examination has been taken by the Deputy Director
General of the service himself.
31. This is also manifested from the fact that in terms of the
notified procedure, the Commandant had issued the medical
examination forms to the candidates declared selected by the
FSB.
32. The present case raises a basic question on well settled
first principles. It is trite that the appointing authority has no
jurisdiction at all to change or vary the selection process after its
commencement. In view of the above, the issue raised before
this court is the jurisdiction of the respondents to vary the
selection procedure which they had notified to the candidates in
the advertisement dated 12th November, 2009, more so after
the candidates had undertaken the entire notified selection
procedure and had been declared successful.
33. In this regard, reference can usefully be made to the
pronouncements of the Supreme Court on the same issue which
have been placed before us by learned senior counsel for the
petitioner.
34. The law in this issue was laid by the Supreme Court as
back as in the judgment reported at 1983 (3) SLR 293,
Dr.Vinay Rampal Vs. The State of Jammu & Kashmir &
Ors. in the following terms:-
"3. If the petitioner's eligibility for admission
to the course for which he had applied is to be
judged on the qualifications as set out in the
advertisement, it is indisputable that he was
eligible for admission under Clause (b)(iv) of the
advertisement. Mr. Altaf Ahmed, however drew
our attention to item No. 12 in Notification No. 4
of 1981 issued by the Government Medical
College at Jammu, which recited that the selection
of the candidates will be made strictly in
accordance with the instructions issued by the
Government. That may be so. But can it be urged
that advertisement was issued ignoring
Government instruction if any relevant to the
subject. In any event such a vague direction that
the selection of candidates will be made strictly in
accordance with the instructions issued by the
Government, in the face of advertisement, leave
us cold because any such instruction must be in
conformity with some rules and if there be rules
the same must be in conformity with the
Regulations framed by Indian Medical Council if its
jurisdiction extends to Jammu and Kashmir. It was
never suggested at any point of time that in
issuing the advertisement there was any error. If
that be so the College authority including Principal
issuing advertisement and inviting applications for
admission must be held bound by it unless shown
otherwise.xxxxx"
35. In 1992 (2) SLR 379, N.T. Devin Katti Vs. Karnataka
Public Service Commission & Ors., statutory rules for
selection and appointment were amended after the
commencement of the selection process. The Supreme Court set
aside the selection which was effected pursuant to the amended
rules and held that the selection could have been made only in
terms of the rules which were in vogue and applicable at the
time of commencement of the selection process. In this regard
the observations of the Court deserve to read in extenso and
read as follows:-
"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 selections 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 crystalises 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.
13. xxxx It is a well accepted principle of
construction that a statutory rule 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 and Ors. v. State of Karnataka and Ors.,
1983(3) Speed Post Judgments 276 (SC)."
(Underlining by us)
36. Mr. G.D. Gupta, learned senior counsel has drawn our
attention to the following observations in (2001)10 SCC 51,
Maharashtra State Road Transport Corp. & Ors. Vs.
Rajendra Bhimrao Mandre & Ors., which are also instructive
and clearly state the position thus:-
"5. xxxx. It has been repeatedly held by this
Court that the games of the rules meaning
thereby, that the criteria for selection cannot be
altered by the authorities concerned in the middle
or after the process of selection has
commenced.xxx"
37. In similar facts, another decision of the Supreme Court
reported at (2008) 2 SCC (L&S) 203, Hemani Malhotra Vs.
High Court of Delhi & Anr. is topical and reads as follows:-
"14. It is an admitted position that at the
beginning of the selection process, no minimum
cut off marks for viva-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 ...xxx."
xxxx
"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."
38. We may note that in the aforenoticed precedents the court
placed reliance on its earlier pronouncement reported at (2008)
1 SCC (L&S) 841, K. Manjushree Vs. State of A.P. which
placed reliance on an earlier precedent, and in para 32 held as
follows:-
"32. In Maharashtra State Road Transport
Corporation v. Rajendra Bhimrao Mandve
MANU/SC/0737/2001 : (2002)ILLJ819SC , this
Court observed that "the rules of the game,
meaning thereby, that the criteria for selection
cannot be altered by the authorities concerned in
the middle or after the process of selection has
commenced." In this case the position is much
more serious. Here, not only the rules of the game
were changed, but they were changed after the
game has been played and the results of the
game were being awaited. That is unacceptable
and impermissible.
In a judgment reported at (2010) 3 SCC 104, Ramesh
Kumar Vs. High Court of Delhi & Anr., the court was
concerned with the situation where the appointing authority had
not prescribed any minimum marks as the cut off marks in the
interview for the selection till long after its commencement. This
action was assailed before the Supreme Court which held as
follows:-
"13. In Shri Durgacharan Misra v. State of
Orissa and Ors. MANU/SC/0627/1987 : AIR 1987
SC 2267, this Court considered the Orissa Judicial
Service Rules which did not provide for
prescribing the minimum cut-off marks in
interview for the purpose of selection. This Court
held that in absence of the enabling provision for
fixation of minimum marks in interview would
amount to amending the rules itself. While
deciding the said case, the Court placed reliance
upon its earlier judgments in B.S. Yadav and Ors.
v. State of Haryana and Ors. MANU/SC/0409/1980
: AIR 1981 SC 561; P.K. Ramachandra Iyer and
Ors. v. Union of India and Ors.
MANU/SC/0395/1983 : AIR 1984 SC 541; and
Umesh Chandra Shukla v. Union of India and Ors.
MANU/SC/0050/1985 : AIR 1985 SC 1351, wherein
it had been held that there was no "inherent
jurisdiction" of the Selection Committee/Authority
to lay down such norms for selection in addition to
the procedure prescribed by the Rules. Selection
is to be made giving strict adherence to the
statutory provisions and if such power i.e.
"inherent jurisdiction" is claimed, it has to be
explicit and cannot be read by necessary
implication for the obvious reason that such
deviation from the rules is likely to cause
irreparable and irreversible harm.
14. Similarly, in K Manjusree v. State of
Andhra Pradesh and Anr. MANU/SC/0925/2008 :
AIR 2008 SC 1470, this Court held that selection
criteria has to be adopted and declared at the
time of commencement of the recruitment
process. The rules of the game cannot be changed
after the game is over. The competent authority,
if the statutory rules do not restrain, is fully
competent to prescribe the minimum qualifying
marks for written examination as well as for
interview. But such prescription must be done at
the time of initiation of selection process. Change
of criteria of selection in the midst of selection
process is not permissible."
39. Our attention has also been drawn to the Recruitment
Rules which have been notified by the Government of India in
exercise of power conferred under Section 123 of the Coast
Guard Act 1978 which are titled as Coast Guard Officer (Law
Officer) Recruitment Rules, 1984. The advertisement which was
issued and published by the respondents on 12th November,
2009 was in terms of these recruitment rules.
40. The eligibility conditions which were notified in the
advertisement dated 12th November, 2009 are stated to be in
terms of these recruitment rules. The Supreme Court has
struck down the action of the authorities even in fixing cut off
marks or allocating marks for different stages of the selection
process as illegal and impermissible.
41. So far as the selection procedure is concerned, we have
been informed by learned counsel for the respondents that the
procedure notified in the advertisement dated 12th November,
2009 was the procedure which was adopted and followed by the
respondents for effecting appointments for the last 30 years.
42. The above discussion would show that the respondents
had not only notified the candidates/applicants seeking
appointment to the post of Deputy Commandant (Law) of the
selection procedure in the advertisement dated 12th November,
2009 but had in fact completed the process pursuant thereto.
43. The respondents had clearly notified the candidates that
the applicants would undergo scrutiny process when eligible
candidates would be shortlisted and call letters for the entrance
test would be issued only to such shortlisted candidates. So far
as the selection process thereafter was concerned, the
respondents had clearly indicated that the same would consist
of "two phases alone" and nothing further. The two phases
about which the respondents notified the applicants included
the preliminary selection and the final selection. The
respondents had unequivocally notified the applicants that the
selection would be made only on the basis of performance of the
candidate in the final selection board. It was further stated that
those candidates who were found medically fit would be placed
in the merit list and the merit list would be prepared according
to the number of vacancies which were available.
44. An admitted position is that the petitioners had
successfully undertaken the Preliminary Selection Board as well
as the Final Selection Board and had been given the prescribed
medical forms for undergoing the medical examination. It is
only thereafter that the respondents mooted for the first time a
proposal to conduct "Professional competency and suitability"
assessment. Even if it was to be assumed the Deputy Director
General was the competent authority for approving such
assessment, it is noteworthy that such proposal was put up to
and approved even by this authority only on 21st December,
2009. In view of the legal position noticed hereinabove, it has to
be held that such decision and action requiring the assessment
of the competency and suitability long after the commencement
of the selection process, so much so that the Final Selection
Board stood completed and results declared, is clearly without
jurisdiction or authority of law and not sustainable.
45. We may also notice the manner in which the respondents
have conducted the proceedings on 21st December, 2009. It is
an admitted position that the candidates who were so tested
and assessed were not put to notice of the fact that they would
be required to undergo such procedure and testing. They were
admittedly not informed about the prescribed syllabi for the
tests and were given no opportunity to get ready or come
prepared for the written test and examination. No syllabus or
schedule was announced. Whereas the advertisement drew a
distinction between „essential‟ and „desirable‟ qualifications in
the prescripted eligibility conditions in the advertisement, the
professional competency was assessed on the 21st of December,
2009 on subjects mentioned in the „desirable‟ qualifications, that
too without notice. On this basis the declared result has been
changed.
46. We are informed that Shri Vikas Saxena, (petitioner in
WP(C)No.2674/2010) was placed at the top of the selection list
by the Final Selection Board. He was followed by Shri Nagender
Singh, (petitioner in WP(C)No.4390/2010). Ms. Vaishali Sood,
was placed in the third position by the Final Selection Board.
This position has been reversed by the so called Professional
Competency Board in its testing and interviews held and
conducted on 21st December, 2009 without opportunity to
prepare to the candidates. In the result declared, the petitioners
have been failed, while the third candidate declared as passed.
47. The pleas set up by the respondents in the counter
affidavits are falsified by the records and documents which were
issued to the petitioner as well as the records produced before
us. On 30th November, 2009, the respondents issued a call
letter to Shri Nagender Singh whereas this call letter was issued
to Shri Vikas Saxena on 3rd December, 2009. Even these call
letters refer to only the preliminary and final selection boards
and do not even suggest any professional competency board.
These letters were in the format prescribed for appointment to
the post of Assistant Commandant with the necessary
corrections have been effected in hand by the respondents.
48. The files produced before us do not contain any noting to
the effect that information about the professional competency
board was given to the candidates in the inaugural address. It is
obvious that no such information could have been given for the
reason that there was no decision till 21st December, 2009 for
the candidates to undergo the assessment by a "Professional
Competency Board."
49. There is nothing on record produced which even suggests
a reference to the manner in which the testing and evaluation of
the professional competency would be effected. The
constitution of the board was effected by the Deputy Director
General on 21st December, 2009 which proceeded to conduct its
proceedings on the same day. There is no disclosure of any
decision on or the method of testing. There is no prescription of
a written test or the nature thereof. The counter affidavit refers
to "short written test" but its nature is not disclosed even in the
counter affidavit. Even this court has been kept in the dark with
regard to the prescribed curriculum and syllabi for the written
test and the authority which had set the question papers
thereof.
50. So far as the proceedings which were conducted by the
above appointed board are concerned, it appears that this board
assembled on 21st December, 2009 and required the three
candidates who had successfully cleared the Final Selection
Board to undertake a fresh written test as well as the interview.
51. We may notice that the petitioners contend that they had
been telephonically informed on 17th December, 2009 to contact
the Chief Law Officer on 18th December, 2009 which they did.
The proposal to conduct such a professional competency test
and interview was made only on 21st December, 2009.
52. The respondents submit that the board subjected the three
candidates shortlisted by the Final Selection Board, to an initial
thirty minutes objective test on general law and basic maritime
law followed by the interview to assess their professional
knowledge. The consideration of the professional competency
by the board was based on the performance of the candidates in
the written test and interview. It is also not disclosed anywhere,
either in the counter affidavit or in the record which has been
produced before us, as to which was the authority who set the
questions papers and evaluated the same. It is stated before us
that the board which was constituted on 21st December, 2009,
has followed a unique procedure and itself decided the method
of evaluation, format of testing and set the question papers
which the candidates were required to answer on the same day.
53. So far as the questions which were posed to the
candidates during the interview is concerned, the submission
before this court is that these were jointly prepared "in
advance" by the president and the members of the board. The
questions were asked by the President with further additional
questions being asked by the Members, wherever necessary,
depending on the reply of the candidate. Interestingly this
entire narration in the counter affidavit does not set out as to
which was the authority which had approved this syllabus or the
procedure which was adopted by the board. Admittedly, there
was no approval by any competent authority. This matter was
not even examined by any officer even at the level of Deputy
Director General, let alone the appointing authority under the
provisions of Indian Coast Guard Act or by any person to whom
such authority was legally or validly delegated. The same has
been left to the absolute discretion of the board which had been
appointed by him.
We are orally informed by Mr. A.K.S. Chauhan, DIG, Chief
Law Officer, Coast Guard, who is present, that this board took all
the decisions and steps and that it also corrected the answer
sheets itself, announced the result and also conducted the
interviews apart from making the recommendations in respect
of the result on the same day.
54. So far as the result or grading of this assessment is
concerned, the respondents said that the professional
competency board submitted its proceedings on 22nd December,
2009 which were approved by the "competent authority". The
result was thereafter intimated to the candidates by the
Directorate of Manpower, Recruitment and Training concerned
with the subject. The respondents have contended that the
result of the assessment by this board was declared on 23rd
December, 2009 when both the petitioners were declared as
having failed in the interview while the third candidate, Ms.
Vaishali Sood was found to be the sole candidate with an
average professional competency and was accordingly selected
for appointment to the post of Deputy Commandant (Law) and
she was sent for medical examination.
55. Mr. G.D. Gupta, learned senior counsel appearing for Sh.
Nagender Singh has urged that under the provision of Coast
Guard Act, 1978, only the Central Government is the competent
authority to effect appointments to the force. This power stands
delegated to the Director General of the Coast Guard Service
and has not been delegated to any other person or authority
within the Coast Guard Service. This position is not disputed on
behalf of the respondents. There appears to be substance in the
objection of the petitioners that the decision to adopt the new
procedure was not by an authority competent to do so.
56. Before parting with this case, it is necessary to notice one
extremely distressing fact. The relevant file was not placed
before this Court till the final stage of hearing. We find that in
the counter affidavits a completely false plea has been taken to
the effect that the candidates who reported for the selection
process were further informed during the inaugural address that
those qualifying the final selection board would have to appear
before such board. According to the respondents, this address
was effected before holding the preliminary selection board. The
above discussion amply shows that the respondents had not
even proposed the holding of a professional competency board
on the date when the inaugural address was allegedly given to
the candidates. Such plea taken on affidavit filed at the highest
level not supported by any record is reprehensible and
deserves to be condemned.
57. We were inclined to take strong view in the matter and
proceed against the authorities concerned in respect of such a
plea and the attempt to conceal the correct record from this
Court. (Ref : AIR 1994 SC 853, S.P.Chengalvaraya Naidu
Vs. Jagannath & Ors; 1980 Crl.LJ 684, Advocate-General,
State of Bihar Vs. M/s.Madhya Pradesh Khair Industries &
Anr.; (1978) 1 SCR 742, T.Arvandandam Vs. T.V. Satyapat
& Anr. and of this Court in 71(1998)DLT 1= 1998(44)DRJ
109, T.Arvandandam Vs. T.V. Satyapat & Anr.) However,
our attention has been drawn to the communication
dated 31st March, 2010 addressed by DIG B.K. Patasahani to
Shri Nagender Singh (petitioner in WP(C)No.4390/2010)
wherein he has been informed that there were five vacant
seats of the post of Deputy Commandant which existed
on 31st December, 2009 for which the selection process
was undertaken.
58. We are informed by Ms. Barkha Babbar, learned counsel on
instructions from the officers present, that the directions made
by this court in the order dated 22nd April, 2010 in
W.P.(C)No.2674/2010 have been complied with by the
respondents. We are further informed that the respondents have
effected one appointment to the post of Deputy Commandant
(Law) following the new procedure which was adopted on 21 st
December, 2009.
59. It is noteworthy that despite our directions made on 22nd
April, 2010, no other person has come forward to contest these
writ petitions.
60. It is admitted before us that the petitioners have been
found successful in the Final Selection Board in terms of the
notified procedure. Only the medical examination, for which the
requisite medical forms have been issued to the petitioners by
the competent authority, remained to be completed. It is an
admitted position that other than filling up one post, the other
four posts remain vacant for completing the procedure of
selection pursuant to the advertisement dated 17th December,
2009. It is, therefore, possible to ensure justice to the
petitioners without taking this matter further.
In view of the order passed by us on 22nd April, 2010 in
W.P.(C) No.2674/2010, the respondents are required to effect
restitution in terms of the same.
61. In view of the above, we hold and direct as follows:-
(i) The selection process undertaken by the Professional
Competency Board on 21st December, 2009 and the
result thereof declared on the 23rd of December,
2009 are held to be illegal and hereby set aside and
quashed.
(ii) The respondents are directed to complete the
selection process effectuated pursuant to the
advertisement dated 12th November, 2009 and to
give effect to the result of the Final Selection Board
conducted between 13th and 17th December, 2009.
(iii) The petitioners shall be permitted to undertake the
medical examination in terms of the documents
issued to them on 17th December, 2009 by the Base
Hospital, Delhi Cantt.,
(iv) The respondents shall issue necessary orders in
terms of the above including the requisite intimation
to the Base Hospital, Delhi Cantt. within a period of
six weeks from today with written notice to both
the petitioners.
(v) In case the petitioners are found medically fit, the
respondents shall complete the appointment of the
petitioners to the post of Deputy Commandant (Law)
within a period of four weeks of the medical
examination.
(vi) The respondents shall ensure that the seniority and
any other consequential benefits of the petitioners
shall be maintained strictly in terms of the
recommendation of the Final Selection Board dated
17th December, 2009.
(vii) Each of the petitioners shall be entitled to costs of
25,000/- each which shall be paid within a period of
four weeks from today.
This writ petition is allowed in the above terms.
GITA MITTAL, J
J.R. MIDHA, J
SEPTEMBER 13, 2010
aj
