Delhi High Court
Union Public Service Commission vs Dr. Smita Ramachandran And Anr on 16 December, 2015
$~23.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7048/2015
% Judgment dated 16.12.2015
UNION PUBLIC SERVICE COMMISSION ..... Petitioner
Through : Mr.Naresh Kaushik, Ms.Aditi Gupta and
Ms.Krtika Sharma, Advs.
versus
DR. SMITA RAMACHANDRAN AND ANR ..... Respondents
Through : Mr.Anoop Bagai, Sr. Adv. with Mr.L.R.
Luthra and Mr.Amitesh Kumar, Advs. for
respondent no.1.
Mr.Sandeep Mohapatra, Adv. for
respondent no.2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J (ORAL)
1. Present writ petition has been filed by petitioner-UPSC under Articles 226
and 227 of the Constitution of India seeking a direction to quash the
impugned order dated 1.4.2015 passed by Central Administrative Tribunal
(hereinafter referred to as the „Tribunal‟) whereby the O.A. filed by
respondent no.1 was allowed and the petitioner was directed to reconsider
the application of respondent no.1 for the post of Assistant Professor
(Paediatrics).
2. With the consent of counsel for the parties, present writ petition is set
down for final hearing and disposal.
3. The necessary facts, to be noticed for disposal of the present writ petition,
are that on 8.6.2013 an advertisement was published by the petitioner
inviting applications for filling up various posts including 31 posts (04
SC, 02 ST, 09 OBC and 16 UR) of Assistant Professor (Paediatrics) in the
Ministry of Health and Family Welfare, Central Health Services. The
closing date for receiving online application was 27.6.2013. The
eligibility criteria and experience as per the advertisement read as under:
"A. EDUCATIONAL
(i) A recognized medical qualification included in the First or
the Second Schedule of Part-II of the Third Schedule (other than
licentiate qualifications) to the Indian Medical Council Act, 1956.
(ii) Post Graduate degree qualification in the concerned
speciality i.e. M D (Paediatrics) or equivalent.
B. EXPERIENCE : At least three years‟ teaching experience
in the concerned speciality as
Lecturer/Tutor/Registrar/Demonstrator/Senior Resident after the
requisite Post graduate degree qualification."
4. Pursuant to the aforesaid advertisement, the petitioner applied for the
aforesaid Post, however, the application form of respondent no.1 was
rejected on the ground that she did not properly fill the essential
qualification in the online application form, which led to the filing of the
O.A.No.4247/2013 by respondent no.1 before the Tribunal, wherein on
6.12.2013 a direction was issued to the petitioner to dispose of the
representation dated 17.9.2013 of respondent no.1. Pursuant to the
direction passed by the Tribunal, the matter was reconsidered and
examined by the petitioner, however, the representation of respondent
no.1 was rejected vide order dated 9.12.2013. Meanwhile the petitioner
invited 131 candidates for interview. The result was declared on
20.1.2014 subject to the final outcome of the O.A. and accordingly partial
recommendation letters, recommending the names of 25 recommended
candidates, were issued. On 1.4.2015, the Tribunal disposed of O.A.
4247/2013 filed by respondent no.1, in favour of respondent no.1, with
the following direction:
"13. In view of above facts and circumstances, the OA is disposed
of with the direction to the respondents to reconsider the
application of the applicant for the post of Assistant Professor
(Paediatrics), keeping in view the fact that in the column under
heading "Qualification Level" the applicant had mentioned as
Post-graduate and under the head "Specialization/Mandatory
Subject" she mentioned i.e. Paediatrics as per the requirement of
columns and there was no such details of minimum essential
qualification as MD (Paediatrics). This exercise shall be completed
within a period of three months from the date of receipt of a copy of
this Order under intimation to the applicant. No costs."
5. Mr.Kaushik, learned counsel appearing on behalf of the petitioner,
submits that the Tribunal has exceeded its jurisdiction while allowing the
O.A. filed by respondent no.1 and also failed to consider that respondent
no.1 did not fill up the online application form as per the advertisement
published by the petitioner. Mr.Kaushik further submits that the finding of
the learned Tribunal is erroneous as respondent no.1 has wrongly equated
her MBBS qualification with PG qualification i.e. MD (Paediatrics).
Counsel also submits that the Tribunal has failed to take into account that
during the pendency of the matter the Tribunal had directed the UPSC to
dispose of the representation dated 17.9.2013 of respondent no.1 before
9.12.2013, which was examined and rejected for the reason that
respondent no.1 failed to fill up the details of MD (Paediatrics)
qualification in the online application and, thus, she could not be
considered as a valid candidate. Counsel also contends that the Tribunal
has failed to consider that the Commission receives a large number of
applications and it was not practical to physically scrutinise each and
every application so as to decide the eligibility. It is also explained by the
learned counsel for the petitioner that after the introduction of the Online
Recruitment Application (ORA), the computer system generates a
scrutiny report for the purpose of Pre-Preliminary Scrutiny of
applications, which is based on the information provided by the candidate
under „Degree‟ and „Subject‟ columns of Educational Qualification
Module of online application system.
6. Learned counsel for the petitioner contends that respondent no.1 had filled
up MBBS degree in the „degree and subject‟ column of education
qualification although the essential qualification was MD. Thus in the
absence of essential qualification having been correctly filled up by
respondent no.1, petitioner cannot be blamed. Counsel also contends that
in case the instructions are not followed by the candidates for filling up
online recruitment applications as available on the website of the
Commission including the qualifications, the petitioner cannot be blamed
as the package is programmed by specialists and there cannot be
individual interference as the same would lead to bias, tampering and the
whole procedure would become endless as in some of the examinations
lakhs of candidates apply. It is further submitted that the very purpose of
introduction of ORA system would be defeated if after the pre-scrutiny is
carried out by the computer, physical examination is conducted for each
form. Learned counsel also submits that the judgment passed by the
Coordinate Bench of the Tribunal in the case of Poonam Gupta would be
applicable on all force to the facts of the present case as in the aforesaid
case the form was incomplete and respondent no.1 cannot take advange of
her own shortcoming. Reliance is placed by the counsel on Union Public
Service Commission And Anr. v. Government of NCT of Delhi & Ors.,
W.P.(C) 100587/2009, more particularly paras 25 to 27, wherein a
Division Bench of this Court has recognised the fact that it would be
highly impracticable for UPSC to give a go-by to the instructions, which
have been categorically and specifically mentioned in the advertisement.
Paras 25 to 27 of the judgment read as under:
"25. With such a large number of DAFs having been received by
the UPSC, it is impracticable to expect the UPSC to give a go by to
the instructions that have categorically and specifically been
mentioned in the advertisements issued by it. It is one thing to say
that procedure is a handmaid of justice but it is another thing, in
practical life, to give procedure a complete go by for the sake of
accommodating a few people. If this is done, then there would be
no obligation on anybody to follow any procedure resulting in a
completely unmanageable situation.
26. If the submission made by learned counsel for the Respondents
is placed on a larger canvas (since the UPSC conducts dozens of
such examinations annually), one can well imagine the resultant
chaos. For example, it is well known that the UPSC receives lakhs
of applications for the Central Civil Services Examination. If every
such applicant submits an incomplete application, that is to say that
the relevant information is not submitted along with the
application, the processing time for the UPSC would take several
months and would, in the long run, be completely
counterproductive. Consequently, in our opinion while it is true
that procedure is the handmaid of justice, it is not possible to
ignore practical difficulties that may arise in a given case.
27. The present case is such a case where, because of a very large
number of applications received by the UPSC, if it is compelled to
accept procedurally incomplete applications, there would be
serious practical difficulties that it would have to encounter and
this may very well lead to a break down in the system. We also
cannot overlook the fact that the applicants/Respondents are all
highly educated persons claiming to have an LLB degree and three
years experience at the Bar. Therefore, it must be assumed that they
fully understood the contents of the advertisements and the DAF.
There was a duty cast on them to correctly fill up the DAF and they
cannot be allowed to contend that despite this, their application
should be accepted even if it is incomplete only because procedure
is the handmaid of justice.
7. It is also contended by the learned counsel for the petitioner that if the
directions of the Tribunal are accepted and UPSC is compelled to accept
incomplete applications then it would lead to serious practical difficulties,
a complete breakdown of the system and would also severely affect
various recruitment processes. Reliance is placed by the learned counsel
on the directions contained in the judgment rendered by the Calcutta High
Court in W.P.(C) 49/2012 wherein it was held as under:
"14. A process for selection and appointment to a public office
should be absolutely transparent and there should be no deviation
from the terms and conditions of the employment notice and the
rules applicable to the process in any manner whatsoever, for a
deviation for a particular candidate amounts to gross injustice to
other candidates not knowing the fact of deviation benefiting only
one or a few. The procedure should be same for all the candidates.
In our opinion, the Tribunal rightly dismissed the petitioner‟s OA."
8. Mr.Bagai, learned senior counsel appearing on behalf of respondent no.1,
submits that the candidate cannot be blamed if an appropriate software is
loaded on the computer. Strong reliance is placed by Mr.Bagai on the
terms of the advertisement wherein the word „post-graduate‟ is used:
"12. (Vacancy No.13060812108)
Thirty-one Assistant Professor (Paediatrics) in Ministry of Health
and Family Welfare. Of the thirty-one posts, four posts are reserved
for Scheduled Castes Candidates, two posts are reserved for
Scheduled Tribes Candidates, nine posts are reserved for Other
Backward Classes Candidates and remaining sixteen posts are
Unreserved. QUALIFICATIONS: A. EDUCATIONAL: (I) A
recognized medical qualification included in the first or the Second
Schedule or Part-II of the Third Schedule (other than licentiate
qualifications) to the Indian Medical Council Act, 1956. Holders of
educational qualifications included in Part-II of the Third Schedule
should also fulfil the conditions stipulated in sub-section (3) of the
Indian Medical council Act, 1956. (II) Post Graduate degree
qualification in the concerned speciality i.e. M D (Paediatrics) or
equivalent. The candidates holding DNB qualifications ___uld need
to get their qualification verified by NBE as to whether it is as per
the requirement of the Gazette notification No.MCI-12(2)/2010-
Med.Misc. dated 11.6.2012 and produce such verification
certificate at the time of interview. B. EXPERIENCE, NOTE,
DUTIES, HQ and ANY OTHER CONDITIONS Same as in item
No.10 above."
9. Learned senior counsel further submits that an MD, DNB or DM all
would be covered under the umbrella of a post-graduate. It is further
contended that a careful examination of the relevant column of the form
would show that respondent no.1 had filled up „post-graduation‟ under the
column „qualification level‟ and in the column of „specialty‟, „Paediatrics‟
has been filled up. Thus, there was no lapse on the part of respondent no.1
and in case the information has not been supplied in the manner as
expected by the petitioner that by itself cannot be a ground to reject the
case of respondent no.1. Learned senior counsel further submits that in the
proceedings under Article 226 of the Constitution of India, the petitioners
are unable to show that the order passed by the Tribunal is either perverse,
illegal or unreasonable.
10. We have heard learned counsel for the parties, considered their rival
submissions and also examined the order passed by the Tribunal, by
which the O.A. filed by the respondent herein stands allowed. It is not in
dispute that pursuant to an advertisement published in the year 2013,
inviting applications for filling up various posts of Assistant Professor
(Paediatrics). It is the case of the respondent that despite filling up the
application form correctly the respondent was not called to produce the
original documents and, thus, she sought reasons from the petitioner for
not processing her application. The respondent was informed that her
application form was deficient as she has not indicated her qualifications
in the second row, fourth column under the Heading Educational
Qualifications. Respondent thereafter made a representation to the
petitioner herein. As the representation of the respondent did not yield
favourable results, she approached the Tribunal by filing an O.A.
11. Mr.Naresh Kaushik, learned counsel for the petitioner, has submitted that
the petitioner receives a large number of applications for recruitment and
in case application form is not correctly filled up it is not possible for the
petitioner to scrutinize each and every application form individually and,
thus, in the absence of the respondent having filled up the form correctly,
the petitioner is well within its right to reject the application.
12. The stand taken by the petitioner before the Tribunal in the counter
affidavit reads as under:
"That as the Commission receives a large number of applications
for recruitment to various posts, and it is not practical to
physically scrutinized each and every application to decide the
eligibility. Therefore, after introduction of Online Recruitment
Application (ORA), on the basis of the information filled in the
online application by the candidates, the computer system
generates a scrutiny report for the purpose of Preliminary Scrutiny
of applications. The scrutiny report contains the essential
information like Name, Roll No. of the candidate, Educational
Qualification claimed by the candidate, the quantum of experience
(in years, months and days). Pre-Preliminary Scrutiny is done on
the basis of the Scrutiny Report generated by the Computer System
as per the information filled in by the candidates in the online
application form. Thus, the application of the candidates who do
not claim the minimum essential qualification in the online
application is rejected straightway without at the printout of the
applications."
13. We may note that the representation made by the respondent before the
petitioner herein was rejected by an order dated 9.12.2013, which reads as
under:
"I am directed to refer to your representation dated 12/9/2013
regarding consideration of your application for the above
mentioned recruitment case. The matter has been examined when it
is noted that have not filled up the details of minimum essential
qualifications; EQA (ii) i.e., MD(Paediatric) in the online
application. Since, such incomplete applications are summarily
rejected; your representation for consideration of your application
cannot be acceded to."
14. Since the bone of contention between the parties is the application form,
the relevant part of the application form, as filled up by the respondent, is
reproduced as under:
Qualifica- Degree Subject Qualification Specialization University/ Duration Date of Division/Class Result Date of
tion Level /Mandatory College From-to Notification Type/ Degree
Subject Result
Score
Essential MBBS MBBS Post Paediatrics Ch. Charan May 06.06.2010 12.02.2011
Graduate Singh 2007 To
Medical/ University, May
Denta Meerut 2010
Vet/Ahush Santosh
Medical
College
and
Hospital
15. It is the contention of Mr.Kaushik, counsel for the petitioner, that in the
column „Qualification Level‟ the respondent has filled up Post-Graduate
instead of MD, DNB or DM and since the application form was filled up
on-line and the expected qualification as per the requirement of the on-
line application form was not met, the application form of the respondent
was rightly rejected. Mr.Kaushik has relied upon various judgments in
support of his submission that Courts have repeatedly recognized the fact
that the Commission (petitioner herein) receives large number of
applications for recruitment to various posts and it is not practical to
physically scrutinize each and every application to decide the eligibility.
The Courts have also recognized that the computer system generates a
scrutiny report and in case a scrutiny report contains the essential
information and since on-line application of the respondent did not
contain the minimum essential qualification, the same was rejected.
16. While there is no quarrel to the proposition, sought to be urged by
Mr.Kaushik, and we respectfully agree by the views expressed by the
judgments rendered by this Court and as relied upon by the counsel for
the petitioner, but in our view the said judgments are not applicable to the
facts of the present case.
17. In paragraph 3 aforegoing, we have extracted Clause A of the
advertisement, which talks of a post-graduate degree qualification in the
concerned specialty i.e. MD (Paediatrics) or an equivalent. Even in
paragraph 12 of the advertisement, extracted in paragraph 8 aforegoing,
reference has been made to a post-graduate degree qualification in the
concerned specialty. The application form, as filled up by the respondent,
extracted in para 14 aforegoing, would show that in the column of
Qualification level, the respondent has entered „Post-Graduate‟. In the
column „Specialization/Mandatory Subject‟, the respondent has rightly
filled up „Paediatrics‟, which was a requirement. To say that instead of the
words „Post-Graduate‟, „MD‟ should have been filled up in the
application form, is not acceptable and in case the computer had been
programmed in such a manner then the advertisement should have
specifically stated that for Post-Graduates, the word MD should be stated.
An MD is a post-graduate qualification. The requirement was Post-
Graduate, the respondent filled up the Post-Graduate in the application
form and the application form thus cannot be held to be incomplete.
Resultantly, we find no infirmity in the order passed by the Tribunal,
which would require interference in the proceedings under Article 226 of
the Constitution of India. The writ petition is accordingly dismissed.
CM APPL. 12906/2015 (STAY)
18. Application stands dismissed in view of the order passed in the writ
petition.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
DECEMBER 16, 2015
msr
