Dr P.V. Lalitha vs Uoi & Ors
2012 Latest Caselaw 4263 Del

               THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 19.07.2012

+       W.P.(C) 2469/2001

DR P.V. LALITHA                                          ... Petitioner


                                          versus


UOI & ORS                                                ... Respondents

Advocates who appeared in this case:
For the Petitioners          : Mr Prashant Bhushan with Mr Rohit Kumar Singh, Mr
                               Shashank Singh and Mr Anupam Bharti.
For the Respondent           : Mr Amit Yadav for R-1.
                               Mr Sanjay Ghosh with Ms Tania Sharma and Ms Pooja
                               Chandra for R-2 & R-3.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                       JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. The petitioner is aggrieved by the order dated 07.03.2001 passed by

the Central Administrative Tribunal in Transfer Application No.19/2000

whereby the petitioner‟s said Transfer Application has been rejected by the

Tribunal. Initially the petitioner had filed a writ petition on 16.12.1999

being W.P. 7541/1999. That writ petition was transferred to Central

Administrative Tribunal on 06.12.2000 and was numbered as T.A.

No.19/2000 which was ultimately dismissed by the said Tribunal by virtue of

the impugned order dated 07.03.2001. Being aggrieved thereby, the present

writ petition has been filed on 09.04.2001 and after admission, the same is

pending adjudication before this Court.

2. The main grievance of the petitioner is that the entire selection process

initiated in pursuance of the advertisement No.2/99 for the post of Scientist

„C‟ (Group IV (2) ), is vitiated on account of the fact that the screening

process itself as also the selection process was contrary to the advertisement

as also to the relevant rules and was also vitiated because of rank

arbitrariness being voilative of Article 14 of the Constitution.

3. The said advertisement No.2/99 had been taken out by the Centre for

Biochemical Technology (C.B.T.) which is now called the Institute of

Genomics and Integrative Biology (I.G.I.B.). The advertisement was, inter

alia, in respect of 3 posts of Scientist „C‟ (Group IV (2) ). The

advertisement, inter alia, indicated the essential qualifications and desirable

qualifications as under:-

"Scientist C (Group IV (2)) - Three posts, Scale of pay : Rs.10,000-325-15,200 Age : 35 years Essential Qualifications and Experience : Ph.D. with 1 years

experience OR MS/MD with 2 years experience OR First Class M.Sc in Physics/Chemistry/Biochemistry/ Microbiology/Biotechnology/Genetics/Life Sciences or Equivalent or First Class MBBS/MVSc., with 4 years experience in the use of techniques in molecular biology/molecular genetics/molecular immunology. Desirable: Experience in population genetics and biostatistics, genomics and molecular medicine, novel drug delivery systems, comparative genomics or other frontier area of biotechnology related to healthcare. Job Description : The incumbent is expected to actively contribute in the ongoing R&D projects in the areas mentioned above and participate in planning and co- ordinating research activities."

4. The petitioner was one of the applicants for the above 3 posts. The

respondent No.3 did not shortlist the petitioner for the interview. In fact,

there were 187 candidates who had applied of which only 16 had been

shortlisted by the Screening Committee and out of those 16, 12 candidates

were asked to appear in person for interview and 4 were considered in

absentia. It is alleged that out of the 12 candidates, 7 candidates were

internal candidates i.e., who were already working in I.G.I.B. Finally, out of

7 internal candidates, 3 candidates were selected for the said 3 posts. Those

3 candidates were Dr S. Ramachandran, Dr Chandrika Bhim Rao and Dr

Mitali Mukherjee. Insofar as Dr Mitali Mukherjee (respondent No.6) is

concerned, there has been no allegation on the part of the petitioner.

However, insofar as Dr S. Ramachandran (respondent No.4 herein) and Dr

Chandrika Bhim Rao (respondent No. 5 herein) are concerned there are

allegations that they were above the qualifying age and it is also alleged that

Dr Chandrika Bhim Rao (respondent No. 5) did not possess the essential

qualification in terms of the above mentioned advertisement.

5. The first writ petition (i.e., W.P. 7541/1999) had been filed by the

petitioner at a stage when only the candidates have been shortlisted by the

Screening Committee. The selection process of selecting persons for the

said 3 posts had not been completed. Therefore, these 3 persons (respondent

Nos. 4, 5 & 6) had not been made parties to the original writ petition. It is

that writ petition which was transferred to the Tribunal and was numbered as

T.A. No.19/2000. Consequently, that T.A. was heard by the Tribunal

without the respondent Nos. 4, 5 and 6 being impleaded in the proceeding.

However, when the present writ petition was filed, as objection had been

taken with regard to non-impleadment of respondent Nos. 4, 5 and 6, who

were subsequently impleaded by virtue of orders dated 30.04.2002 and

24.03.2003.

6. Although Mr Prashant Bhushan, learned counsel appearing on behalf

of the petitioner raised several grounds seeking quashing of the entire

selection process itself, we feel that we cannot go into the allegations of

mala fides inasmuch as the persons against whom the allegations have been

made, namely, Dr Assis Datta and Dr S.K. Brahmachari, have not been made

parties to the present proceedings. Therefore, there could be no answer in

respect of the allegations of mala fides. We may also point out that, initially,

in the earlier writ petition as also in the present writ petition, there were no

allegations of mala fides and that such allegations have come up only in the

rejoinder/sur-rejoinder and written submissions. There is only a suggestion

of mala fides in Ground No. „O‟ of the writ petition but such a general

allegation of mala fides cannot be looked into because the position is well

settled that when mala fides are alleged, particulars of the same have to be

given so that the person against whom it is alleged is in a position to answer

the allegations. It is for this reason that we are not going into the issue of

mala fides.

7. It has been made clear by the learned counsel appearing on behalf of

the petitioner that although they have challenged the entire selection process,

they are not seriously contesting the factum of appointment, insofar as

respondent Nos. 4, 5 and 6 are concerned. The petitioner is more concerned

about the fact that she was left out of the selection process and that she was

not included in the shortlist prepared by the Screening Committee.

8. The learned counsel for the petitioner pointed out that the Screening

Committee itself was not properly constituted and was in violation of the

CSIR Recruitment Rule No. 9.2.2 which provided that the Screening

Committee Members were to be selected from amongst the members of the

Selection Committee. It was contended that the Screening Committee

consisted of not only persons who were members of the Selection

Committee but also of persons who were not part of the Selection Committee

and, therefore, this rule has been violated. It was also pointed out that the

Selection Committee itself was not properly constituted inasmuch as

according to the CSIR Recruitment Rule No. 9.2.1 the Selection Committee

should have a maximum of 5 Members and the Chairman of the Committee

but, the Selection Committee consisted of 7 Members and the Chairman of

the Committee.

9. It was also submitted by the learned counsel for the petitioner that

there was no clear cut criterion on the basis of which the Screening

Committee was to shortlist candidates. One criteria, perhaps, was the

"impact factor". However, it is not at all clear whether even this „impact

factor‟ was taken into account while preparing the shortlist of candidates.

We had asked the learned counsel appearing on behalf of I.G.I.B. and

C.S.I.R. to inform us as to what was the tangible objective criterion which

was applied by the Screening Committee for shortlisting of candidates. He

was unable to come out with a clear cut answer. The only answer that was

forthcoming was that the Screening Committee comprises of experts who

could very well assess the comparative merits of the candidates and thereby

select the top 16 candidates for further processing of selection by the

Selection Committee. But, this, in our view, is not a satisfactory answer.

The very object of a Screening Committee is to cut down the number of

candidates on the basis of some tangible objective criterion and that the

criterion must have a nexus with the object at hand namely selection for the

3 posts of Scientist „C‟. The learned counsel for the respondents C.S.I.R.

and I.G.I.B. then drew our attention to paragraph 2 of the counter affidavit

filed on their behalf in T.A. No.19/2000. In the said paragraph it has been

stated that the Centre for Biochemical Technology which was the previous

name of I.G.I.B., received 187 applications for the post of Scientist „C‟. All

the applications were screened on the basis of „well-defined‟ criteria

particularly in the context of four super specialisation areas specified in the

advertisement, such as the number of publications of a candidate, the

journals in which the said publications were published and the ranking of

such journals as per grading given by international agencies, experience in

the field of specialisation etc. It was further stated that after screening the

applications, 16 candidates were shortlisted and recommended for

consideration and were to be invited for an interview by the Selection

Committee.

10. Although this is what is stated in the counter affidavit, the record with

regard to the screening process has not been produced before us so that we

have nothing before us to verify as to whether this process had indeed been

followed. It would be pertinent to mention that this Court by an order dated

16.10.2003 had directed the respondent to produce the original record

containing the criteria adopted by the Screening Committee for shortlisting

the candidates for the said purpose. Unfortunately, that record has not been

produced till date. The only conclusion that we can arrive at from this

circumstance is that what has been stated in the affidavit has not in fact

happened. There is no evidence before us which would enable us to

conclude that the criteria stated to have been followed by the Screening

Committee had in fact been adopted.

11. We also find that there might be some merit in what the learned

counsel for the petitioner stated that the criteria stated to have been followed

by the Screening Committee had in fact not been followed because if that

were to be so then respondent No.5 could not have come through the

screening process inasmuch as her Ph.D. was in the field of Mathematics

with the sub-category of Bio-statistics. Although Bio-statistics was a

desirable qualification, it was not an essential qualification as indicated in

the said advertisement above. Therefore, there may be some merit in the

submission made by the learned counsel for the petitioner that the

respondent No.5 did not possess the essential qualifications. However, we

are not going into that aspect of the matter now as the learned counsel for the

petitioner does not press for any relief insofar as the respondent No. 4, 5 and

6 are concerned.

12. After considering the totality of circumstances, we are of the opinion

that the screening process was itself unclear and, therefore, it was not fair to

leave out the petitioner from the further process of selection. Therefore,

insofar as the petitioner is concerned, some relief has to be given to her. We

are informed by the learned counsel appearing for respondent Nos. 2 and 3

that now there are several vacancies for the post of Scientist „C‟ with

I.G.I.B.. This has been stated on instructions from Mr Manish Pathak,

Assistant, I.G.I.B. He states, once again on instructions, that these vacancies

are in the process of being advertised. Therefore, we feel that the petitioner

ought to be considered if she makes an application against the vacancies

which are to be advertised for the post of Scientist „C‟ (Group IV (2) ).

There is one problem, however, and that is with regard to the age bar. We

are informed that the age limit for the post of Scientist „C‟ is 35 years.

13. The petitioner, we are told, is above the said age limit of 35 years.

However, the Court can, in appropriate cases, relax the upper age limit, to

give relief to the parties. The Supreme Court in Anup Singh v. Haryana

State Agricultural Marketing Board : 1999 SCC (l&s) 723 while directing

that the appellant be considered against the vacancies which had occurred

also directed that their claim for being appointed to the post in question shall

not be rejected on the ground of age bar because they have been pursuing the

remedy before the court of law. Again in Dilip Kumar Tripathy And Others

v. State of Orissa And Others: (1996) 10 SCC 373 the Supreme Court while

directing the respondent to issue an advertisement indicating the number of

vacancies available and to adjudge the suitability of the applicants in

accordance with the prescribed procedure etc., also directed that if, by the

passage of time, any of the persons who were included in the second list

have been age-barred in the meantime and if they make an application for

the post in question pursuant to the fresh advertisement then the competent

authority may relax the age bar and consider their cases in accordance with

law. This Court has also applied the same methodology in the case of Dr

Virender Singh Lather v. The Secretary, Agriculture Scientists

Recruitment Board, New Delhi & Anr. : in W.P.(C) 10916/2005 decided on

27.01.2012 where, after noticing the above two decisions of the Supreme

Court, this Court had observed that it found no difficulty in directing the

respondents not to consider the petitioner therein to be "over-aged".

14. Consequently, the writ petition is disposed of with the direction that

the petitioner may apply in response to the advertisement inviting

applications for the posts of Scientist „C‟, which advertisement is likely to be

published in the near future. If the petitioner makes such an application the

Competent Authority will not reject the application on the ground of "age

bar". Of course, the petitioner would have to meet all the other eligibility

criteria and would also have to be found suitable for the said post, after

following the due procedure, as prescribed in law. We also make it clear that

the fact that the petitioner has been agitating this matter before this Court as

also before the Central Administrative Tribunal, shall not go against her

when her application is considered.

15. The writ petition is disposed of accordingly. There shall be no order

as to costs.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J JULY 19, 2012 dn