Debashis Mukherjee vs Competition Commission Of India
2014 Latest Caselaw 5340 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) 7312/2012

                                                  Decided on 29.10.2014


IN THE MATTER OF :
DEBASHIS MUKHERJEE                                      ..... Petitioner
                       Through: Petitioner in person.


                       versus


COMPETITION COMMISSION OF INDIA             ..... Respondent
                  Through: Mr. Rajeev Saxena, Advocate with
                  Mr. Rohan Ahuja, Ms. Mehak Tanwar and
                  Mr. Vardaan Dhawan, Advocates


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The petitioner has filed the present petition praying inter alia

that the respondent/Competition Commission of India (hereinafter

referred to as „respondent/CCI') be directed to consider his

candidature for engagement as an Expert in the field of law, by giving

weightage to his qualifications and experience.

2. The relevant facts of the case are that on 28.03.2012, the

respondent/CCI had published a notice on its website, inviting

applications from eligible candidates for engagement of fifteen

experts/professional to assist the Commission in the discharge of its

functions under the Competition Act. As per Clause 5 of the said

notice, the application alongwith copies of supporting documents (viz.

educational qualification and experience) was required to be sent to

the respondent/CCI by 30.04.2012. The notice issued by the

respondent/CCI had clarified that the experts would be engaged in

Level I and Level II and those candidates who had higher educational

qualifications and experience with exceptional profile would be

considered for engagement as Expert (Level III) in the relevant field.

3. Pursuant to the aforesaid notice, the petitioner had submitted

his application for being engaged as an Expert in the field of Law for

Level-II well before the cutoff date, i.e., before 30.04.2012. The

respondent/CCI had conducted interviews for engagement of Experts

in Law for Level II on 18.06.2012 and subsequently, on 25-

26.10.2012, but the grievance of the petitioner is that he was not

called for the interview on either occasion. Aggrieved by the

aforesaid action of the respondent/CCI in failing to consider his

candidature to the subject post, the petitioner has filed the present

petition.

4. The petitioner, who appears in person, submits that he is a

practicing advocate and was enrolled with the Bar Council of Delhi in

the year 2006 and ever since then he has been practicing in the

Supreme Court of India, the High Court of Delhi and other Courts and

Tribunals based in Delhi. He submits that he is holder of a LLB

degree, from GGSIP University and though he possesses the essential

educational qualifications and experience, as prescribed by the

respondent/CCI, his candidature has been arbitrarily overlooked. The

petitioner particularly draws the attention of the Court to the

additional affidavit filed by him under index dated 30.11.2012,

wherein it has been averred that he possesses the desirable higher

qualification, having pursued a Post Graduate Diploma in

International Trade and Business Laws from the Indian Academy of

International Law and that the respondent/CCI had ignored the fact

that the petitioner had completed the LLM course from Annamalai

University before the second set of interviews for the subject post

were conducted by the CCI, in the month of October, 2012.

5. A counter affidavit in opposition to the present petition has

been filed by the respondent/CCI, wherein it has been stated that

pursuant to issuance of the notice dated 28.03.2012, published by

the Commission on its website, proposing to fill up ten vacancies in

the field of Economics, two vacancies in the field of Financial Analysis

and three vacancies in the field of Law, a total of 148 applications

were received by the Commission in the field of Law (71 for Level I,

36 for Level II and 41 for Level III). After scrutiny of the said

applications, the respondent/CCI had shortlisted a total of 43

candidates in the field of Law (13 for Level I, 15 for Level II and 15

for Level III). Out of the applications received, the Commission had

also created a databank of other eligible candidates to be utilized for

future appointment. Thereafter, the candidates who were shortlisted

in the field of Law, were called for interviews from 18.06.2012 to

20.06.2012.

6. The Selection Committee constituted by the respondent/CCI for

interviewing and selection of the shortlisted candidates comprised of

four members (two members of the Commission including one of the

members being a retired Judge of the High Court of Delhi), the other

two members were the Advisor (Law) and Secretary (Incharge) of the

Commission. On the recommendations made by the Selection

Committee, two candidates were selected by the respondent/CCI and

they were offered letters of appointment and five candidates were

placed on the waiting list. Later on, in the month of September,

2012, three vacancies had arisen for appointment to the post of Law

Experts in the Legal Division of the respondent/CCI and some of the

candidates, who were selected earlier, did not join for various

reasons. Keeping in mind the urgency for appointment, the

Commission utilized the databank of the other eligible candidates that

was created when the applications were received from candidates

upon issuance of the notice dated 28.03.2012. Twenty candidates

were shortlisted by the respondent/CCI from the said databank and

they were called for the interview on 25-26.10.2012. The Selection

Committee made its recommendations for engagement of Experts in

the field of Law as per the regulations as well as on merits, while

keeping in mind their qualifications and professional experience.

7. Coming to the petitioner herein, Mr. Saxena, learned counsel

for the respondent/CCI submits that since he had failed to provide a

single certificate/testimonial that threw light on his professional

experience, his application was found to be incomplete in all respects

and resultantly, his name was not shortlisted for the interview in both

the phases of selection. He further submits that the averments

made by the petitioner in his rejoinder that he had attached a copy of

his Enrolment Certificate issued by the Bar Council of Delhi would not

suffice as the said certificate is not material for certifying that he had

acquired adequate experience as a practicing advocate at the Bar.

8. The Court has heard the counsels for the parties and carefully

considered their submissions in the light of the averments made in

the pleadings and the documents placed on record.

9. A perusal of the notice dated 28.03.2012 issued by the

respondent/CCI, inviting applications for engagement of Experts and

Professionals in the fields of Economics, Financial Analysis and Law,

clearly reveals that Clause 5 therein had stipulated that the

candidates should submit their applications by the cut-off date along

with copies of the supporting documents namely, their educational

qualifications and experience. It is an undisputed position that in the

present case, the petitioner had submitted his application but he had

chosen to attach a solitary document, i.e., a copy of his enrolment

certificate with the Bar Council of Delhi. In other words, the

petitioner did not annex copies of the documents relating to his

educational qualifications, namely, the LLB degree obtained by him or

his work experience, by way of a C.V. or testimonials issued in his

favour.

10. The LLM degree obtained by the petitioner subsequently, i.e.,

after he had submitted his application could not change the situation

as the petitioner had failed to mention the fact that at the time of

submitting his application for engagement as an Expert in the field of

Law (Level II), he was a student of LLM. Further, for reasons best

known to him, the petitioner had failed to enclose a work experience

certificate with his application. As a result, the respondent/CCI did

not have the benefit of any document to assess the expertise and

experience of the petitioner in the field of law, for considering his

candidature to the subject post.

11. The additional affidavit filed by the petitioner subsequently,

wherein he has sought to elaborate his educational qualifications and

experience, would not be of any use for the reason that it was

incumbent on him to have furnished all the said information

alongwith his application in terms of Clause 5 of the notice dated

28.03.2012 and that too by the cut-off date prescribed by the

respondent/CCI. Having failed to do so at the relevant point in time,

the petitioner cannot be permitted to make good the said deficiency

by belatedly referring to his work experience and/or professional

experience and relying on the averments made by him in the

additional affidavit filed on 1.12.2012.

12. It is a settled law that when an employer invites applications for

appointment to a particular job, it is his prerogative to stipulate the

educational qualifications and other criteria for selection to the post,

including seeking documents to establish the work experience, etc.,

gained by a candidate. In this context, the Court may usefully refer

to the following observations made by the Supreme Court in the case

of UOI vs. Pushpa Rani & Ors., reported as (2008) 9 SCC 242 :

"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal

position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration." (emphasis added)

13. If a candidate is called upon to submit certain documents to

establish his educational qualifications and demonstrate his work

experience, then an application devoid of the relevant details and

lacking in the supporting documents would have to be treated as

incomplete and be liable to be rejected at that stage. Admittedly,

the petitioner herein had submitted his application without the

supporting documents as prescribed by the respondent/CCI. In such

circumstances, the respondent/CCI cannot be blamed for treating the

petitioner‟s application as incomplete in all respects and resultantly,

refusing to shortlist him for the interview that was held in the first

phase in June, 2012 and in the second phase in October, 2012.

14. In view of the facts that have emerged on a perusal of the

averments made in the writ petition and the rejoinder filed by the

petitioner to the effect that the application submitted by him was

bereft of the supporting documents, namely, his educational

qualifications and the work experience, this Court is of the opinion

that the respondent/CCI was justified in declining to consider the

petitioner‟s application for engagement as an Expert in the field of

Law. There was no material placed before the respondent/CCI to

assess the petitioner‟s expertise in the field of law so as to arrive at

any reasonable conclusion. It is fallacious on the part of the

petitioner to contend that the certificate of enrollment issued by the

Bar Council of Delhi in the year 2006 was sufficient for the

respondent/CCI to infer that he had been practicing as a lawyer in the

courts ever since then. There are innumerable cases where persons

get enrolled with the State Bar Councils but elect not to practice at

all.

15. It is therefore held that the petitioner is not entitled to the

relief, as prayed for, and the respondent/CCI cannot be faulted for

declining to consider his application for appointment to the subject

post, the same not being in order and not fulfilling the requirements

stipulated in the notice dated 28.03.2012. Accordingly, the present

petition is dismissed as being devoid of merits, while leaving the

parties to bear their own costs.

                                                   (HIMA KOHLI)
OCTOBER 29, 2014                                      JUDGE
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