Devi Darshan Seth vs Union Of India & Ors.
2011 Latest Caselaw 2406 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 5th May, 2011.
+                           W.P.(C) 8272/2010
%        DEVI DARSHAN SETH                                     ..... Petitioner
                     Through:             Mr. Harish Pandey, Adv.
                                   Versus
         UNION OF INDIA & ORS.                               ..... Respondents
                      Through:            Mr. Neeraj Chaudhary, Mr. Ritesh
                                          Kumar & Mr. Mohit Auluck,
                                          Advocates for R-1.
                                          Mr. Parag P. Tripathi, ASG with Mr.
                                          Rajiv Saxena, Ms. Mahima Gupta &
                                          Mr. D.K. Pradhan, Advocates for R-2
                                          CCI.
                                          Mr. Chirag Jamwal & Mr. Ajay K.
                                          Upadhyay, Advocates for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                 Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                Yes

3.       Whether the judgment should be reported               Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner claiming to be belonging to the Other Backward

Classes (OBC) category, in response to the invitation by the respondent no.2

Competition Commission of India (CCI), of applications for direct

recruitment to various posts therein, applied for the posts of Joint Director

(Law) and Deputy Director (Law). The "mode of selection" prescribed was

as under:

"7. All the applications received by the due date will be screened with reference to the minimum qualification criteria. From amongst the eligible candidates, suitable candidates will be short listed through a transparent mechanism and the short listed candidates will be called for interview before final selection. Mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview."

2. It is the case of the respondent no. 2 CCI and not controverted by the

petitioner that due to the overwhelming response received from candidates,

CCI decided to undertake the selection to all the posts based on a written test

followed by an interview with the written test being of 80 marks and

interview of 20 marks.

3. The petitioner appeared in the written test for both the aforesaid posts,

was called for interview for the post of Joint Director (Law) on 15 th March,

2010 and for the post of Deputy Director (Law) on 19 th March, 2010. It is

the case of the petitioner that the CCI without publishing the result of the

written examination had merely issued call letters to the successful

candidates calling them for interview and thus the inter se merit of

candidates who appeared in the written test remained unknown to all. The

petitioner, pursuant to the interview did not hear from CCI and after

gathering information through the medium of „Right to Information Act‟

(RTI) filed this writ petition averring that appointments had been made in a

non-transparent manner and in disregard to the criteria for reservation for

OBCs. The petitioner has claimed the relief of directing the respondent no.2

CCI to apply the reservation policy of 27% for OBCs in the matter of

appointments to the various posts and has sought direction for his

appointment against the vacancy of Joint Director (Law) with retrospective

date i.e. from the date on which the respondent no.3, selected as Joint

Director (Law) in CCI in pursuance to the invitation aforesaid, was offered

appointment.

4. The petitioner having confined his relief to the post of Joint Director

(Law) only, hereinafter facts concerning the said post alone shall be

discussed.

5. Notice of the writ petition and of the application for interim relief

seeking to restrain CCI from making any further appointment for the post of

Joint Director (Law) was issued. Counter affidavit has been field by CCI.

The respondent no.3 has adopted the counter affidavit of CCI. The

petitioner has filed rejoinder to the said counter affidavit. The counsel for

the petitioner and the learned ASG appearing for the respondent no.2 CCI

have been heard.

6. CCI in its counter affidavit has pleaded that in exercise of powers

under Section 17 r/w Section 63 of the Competition Act, 2002, recruitment

rules were framed by the Central Government, prescribing the eligibility,

educational qualifications, age limit and other conditions for posts in CCI;

that the task of conducting the written test for the post was assigned to the

National Law School of India University, Bangalore and the results of the

written test were maintained in sealed cover and not handed over to the

Interview Board even, so to maintain absolute impartiality in selection

process; that candidates in the Unreserved Category securing minimum 50%

marks and candidates in the Reserved Category securing minimum of 40%

marks in the written test were called for interview in proportion of five times

the number of vacancies where the vacancies to the particular post were ten

or less and three times the number of vacancies where the total number of

vacancies were more than ten; that the issue regarding drawing of

consolidated list of candidates with composite marks of written test and

interview was considered by CCI in its special meeting held on 31 st March,

2010 when it was decided that the candidates securing 70% or more marks

in the Unreserved Category and 65% or more marks in the Reserved

Category would be selected and appointed; it was so decided desiring that

the vacancies be filled up on the basis of merit and selection of candidates

below the said marks, may not be suitable for discharging the functions of

the post; that the petitioner secured only 61 marks out of 100 for the post of

Joint Director (Law) and having not secured the benchmark of 65 marks as

laid down for appointment under the Reserved Category, was not appointed.

7. CCI in its counter affidavit qua the reservation policy has pleaded that

it has adhered to the guidelines contained in the Notification dated 2nd July,

1997 issued by the Department of Personnel & Training of the Government

of India. It is pleaded and again is not in dispute that there were seven posts

of Joint Director, three (3) in the stream of Law, three (3) in the stream of

Economics and one (1) in the stream of Financial Analysis; of the said seven

posts, one was reserved for OBC and one for Scheduled Castes (SC)

category. It is further pleaded that the posts of Joint Director (Law), Joint

Director (Economics) and Joint Director (Financial Analysis) were grouped

together for the purposes of reservation in accordance with the guidelines in

the Office Memorandum dated 2nd July, 1997 (supra) i.e. out of the seven

posts of Joint Director, any one in any of the three streams could be left for

OBCs and any one in any of the three streams for SC/ST and that CCI was

not required to necessarily fill up the reserved seat for OBC from the stream

of Law only.

8. It is further the plea of CCI that the petitioner having participated in

the selection process which did not require reservation for OBCs in the

stream of Law only, cannot now be allowed to challenge the same after

being unsuccessful. Reliance in this regard is placed on Ranbir Singh Vs.

GGSIP University MANU/DE/1003/2008 and K.H. Siraj Vs. High Court of

Kerala AIR 2006 SC 2339.

9. CCI has further pleaded that since only six candidates were able to

achieve the benchmark decided in the meeting of 31st March, 2010, three

posts in the stream of Law were filled up from the candidates in the

Unreserved Category and two posts in the stream of Economics were filled

up with one each from the Unreserved and from the SC category and one

post in the stream of Financial Analysis was filled up from the Unreserved

Category and one post in the stream of Economics has been kept vacant

against the OBC category.

10. The petitioner in his rejoinder has inter alia pleaded that it is borne

out from the counter affidavit of CCI that it had not laid down the

benchmark of 70% for Unreserved Category and 65% marks for Reserved

Category till the stage of interview and contends that the same was

incorporated in the selection process only to eliminate the petitioner; it is

also averred that no such information as to the decision averred of 31 st

March, 2010 was disclosed in the reply dated 21st October, 2010 to the RTI

query and was taken for the first time by way of Corrigendum thereto dated

10th November, 2010, even though the appointments were made on 21st

April, 2010. Reliance is placed on Hemani Malhotra Vs. High Court of

Delhi (2008) 7 SCC 11 to contend that the rules of the game which means

the eligibility criteria, benchmark etc. were required to be laid down before

the start of the selection process and could not have been added/changed

amidst the selection process.

11. It is also pleaded in the rejoinder that while in the qualifying marks, a

difference of 10% was maintained between the Unreserved and the Reserved

Category, in the benchmark purportedly laid down for the first time on 31st

March, 2010, difference of only 5% marks was maintained between the

Reserved and the Unreserved Category. It is contended that there was no

reason for the said variation and had the difference of 10% in the benchmark

been maintained i.e. of 70% for the Unreserved Category and 60% for the

Reserved Category, the petitioner having secured 61%, would have been

entitled to the appointment, having obtained the highest marks amongst

OBC candidates in all the three streams. It is averred that the difference was

reduced from 10% in qualifying marks to 5% in the benchmark only to

ensure the appointment of respondent no.3.

12. With respect to the reservation policy applied by the CCI, the

petitioner in the rejoinder has pleaded that the OBC candidate i.e. the

petitioner himself, who secured the highest marks in all the three streams

ought to have been appointed.

13. The petitioner, merely for the reason of having participated in the

selection process and having been found eligible as per the parameters laid

down, cannot claim any right of appointment. It is the settled position in law

that even a selected candidate has no right of appointment. Reference in this

regard can be made to Punjab SEB v. Malkiat Singh (2005) 9 SCC 22,

State of U.P. v. Rajkumar Sharma (2006) 3 SCC 330 & S.S. Balu v. State

of Kerala (2009) 2 SCC 479.

14. The invitation of applications in fact even did not lay down that

written test of 80 marks and interview of 20 marks would be held and/or

with qualifying marks of 50% for Unreserved and 40% for Reserved

Category candidates. Clause 7 of the said invitation set out hereinabove

merely provided for screening of the candidates with reference to the

minimum qualification criteria. It was further declared that "mere fulfilling

of minimum qualifications by itself would not entitle any applicant for being

called for interview". The procedure of written test and interview was

designed only because of the large number of applications received. The

petitioner at that time did not object that the selection process being adopted

by CCI was not disclosed in the invitation of applications and took his

chance by appearing in the written test and the interview. Reliance on

Hemani Malhotra (supra) is misconceived. The Supreme Court in that case

was concerned with variation of the criteria laid down after the selection

process had begun. In the present case as aforesaid, no criteria was laid

down and the criteria was being evolved during the process of selection. It

cannot be lost sight of that CCI though created under the Act of 2002 but has

become functional only in the year 2009 and the appointments were being

made for the first time. There were thus no precedent of such appointments.

No mala fide can be imputed to CCI in evolving the process along the way

to selection.

15. The Supreme Court in M.P. Public Service Commission v. Navnit

Kumar Potdar (1994) 6 SCC 293 held that once applications are received

and the Selection Board applies its mind to evolve any rational and

reasonable basis on which the list of applicants should be shortlisted, the

process of selection commences. Similarly, in Govt. of A.P. v. P. Dilip

Kumar (1993) 2 SCC 310 it was held that it is open to the recruiting agency

to screen candidates due for consideration at the threshold of the process of

selection by prescribing higher eligibility qualification so that the field of

selection can be narrowed down with the ultimate objective of promoting

candidates with higher education to enter the zone of consideration.

Similarly, in UOI v. T. Sundararaman (1997) 4 SCC 664 it was held that

where the number of applications received in response to an advertisement is

large, and it will not be convenient or possible to interview all the

candidates, the number can be restricted to a reasonable limit on the basis of

qualification and experience higher than the minimum prescribed in the

advertisement, provided that the criteria is reasonable and not arbitrary

having regard to the post for which selection is to be made.

16. The next question for consideration is whether any illegality can be

imputed to the difference of 5% only in the benchmark for the Unreserved

and the Reserved Category candidates. The counsel for the petitioner has

neither been able to plead nor urge that the difference has to be necessarily

of 10%. The Constitution Bench of the Apex Court in para 358 (i.e. the

opinion of Pasayat and Thakker, JJ. ) of Ashoka Kumar Thakur v. UOI

(2008) 6 SCC 1, even in relation to educational Institutions suggested that

five (5) grace marks below the minimum eligibility marks fixed for General

Category can be given to the OBCs. The opinions of other Judges also

suggest a difference of not more than 10 marks out of 100, below that of

General Category for OBCs. The Supreme Court in Andhra Pradesh Public

Service Commission v. Baloji Badhavath (2009) 5 SCC 1 also appears to

suggest a difference of 5% between the Unreserved and the Reserved

category. Merely because in the qualifying marks the difference of 10% was

maintained, would not compel the CCI to maintain the same difference in

the benchmark for appointment also. There is no identity between

qualifying marks in the written test for being eligible to be invited for

interview and the benchmark for appointment. An employer required to

follow the Policy of Reservation, is entitled to apply different Rules at

different stages so far as framed in accordance with law.

17. The last question for consideration is whether the reservation policy

has been breached in the matter of the CCI not reserving one out of three

posts of Joint Director (Law) for the OBC category. In this regard again, I

find that the invitation for applications itself had clubbed the posts of Joint

Director in the streams of Law, Economics and Financial Analysis and

prescribed reservation of only one post out of seven for OBC without

specifying whether it could be in the stream of Law or Economics or

Financial Analysis. The petitioner at that time did not raise any objection;

he did not contend that since there were three posts of Joint Director (Law),

one should be reserved for OBC. The petitioner after having been

unsuccessful cannot be permitted to raise the said challenge. The law in this

regard is also well settled. Reference may be made to the recent Apex Court

decision in Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576.

18. Even otherwise, I have wondered as to how, when the reservation

prescribed for OBCs is of 27% only, could CCI have reserved one out of

three posts of Joint Director (Law) for OBC; if that were to be the position

then similarly one out of three posts of Joint Director (Economics) also

would have been required to be reserved for OBC and which would have led

to reservation for OBCs in excess of the prescribed 27%. It is for this reason

only that the Office Memorandum dated 2nd July, 1997 of the Ministry of

Personnel prescribes for grouping of posts in small cadres of up to thirteen

posts. The CCI was thus within its right to reserve the post for OBC in any

of the three streams of Joint Director which were clubbed together in

accordance with the said directive and which also passes the test of logic as

aforesaid.

19. I am even otherwise of the opinion that an employer, especially a

specialist Body as CCI is, is entitled to appoint/employ the best talent

available as long as not contravening law and no restrictions can be placed

on their choice. The respondent no.3 admittedly secured more marks in the

written test and the interview than the petitioner and no error can be found in

the decision of CCI to make appointments to all the three posts of Joint

Director in the stream of Law and leaving the post reserved for OBC to be

filled up in the stream of Economics.

20. The settled legal position is that there is no constraint on the

Government in respect of the number of appointments to be made or in

fixing higher score of marks for the purpose of selection and it is open to the

Government to, with a view to maintain high standards of competence, fix a

score which is much higher than the one required for mere eligibility. (see

State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220)

21. The counsel for the petitioner has also contended that even if the

petitioner did not meet the benchmark criteria laid down, the post for OBC

should have been carried forward. The argument is misconceived. The post

reserved for OBC candidates has not been filled up and the learned ASG has

stated that fresh invitations therefor will be invited in due course.

The petitioner is wrong in contending that the post was for the stream of

Law only. It was neither so shown in the invitation applying applications

nor was required to be so, as aforesaid.

22. The petitioner is thus not found entitled to the relief claimed. The writ

petition is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 05, 2011 Bs (corrected and released on 20th May, 2011)