Delhi High Court
Dr. Sanjiv Mahajan vs Upsc on 21 March, 2016
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2392/2016, CMs 10234-10235/2016
Date of decision: 21st March, 2016
DR. SANJIV MAHAJAN
..... Petitioner
Through: Mr. Sachin Chauhan, Adv.
versus
UPSC
..... Respondent
Through: Mr. Arun Bhardwaj, CGSC/UOI with
Mr.Mimansak Bhrdwaj, Adv.
Mr. Vardhman Kaushik with Mr.
Naresh Kaushik, Advs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
1. The petitioner submits that the impugned order dated
07.01.2016 dismissing O.A. No. 2087/2015 is erroneous for the
UPSC had the option and could have relaxed the minimum eligibility
qualification and the said power should have been exercised. It is
submitted that out of six eligible candidates who were called for
interview, only three candidates had appeared and the selected
candidate has not joined.
2. We have considered the said contentions, but do not find
any merit in the same.
3. The advertisement No.2/2015 had a typographical error
which was corrected by the corrigendum published in the
Employment News dated 28th March - 15th April, 2015 to the effect
that the candidates applying for the recruitment to the two posts of
Specialist Grade -III Assistant Professor (Nephrology), in Teaching
Specialist Sub-Cadre of Central Health Service, Ministry of Health
and Family Welfare, must have Doctorate of Medicine (Nephrology).
This was in conformity with the Recruitment Rule, i.e., Section A of
Schedule VI which prescribes 'Doctorate of Medicine
(Nephrology)'as the requisite eligibility qualification for appointment
to the said post by direct recruitment. The Recruitment Rules being
statutory in nature are binding and mandatory. An advertisement
inviting applications for appointment to the said posts could not have
prescribed and stipulated a different or lower eligibility qualification.
4. The advertisement No.2/2015 stipulated 05.02.2015 as the
closing date for submission of online application for recruitment. As
the corrigendum was published in the Employment News dated 28th
March - 15th April, 2015, which is after the cut-off date, it can be
urged that 15th April, 2015 could be treated as the cut-off date for
acquisition of the minimum eligibility qualification. This extended
date would not help the petitioner as he did not hold the requisite
qualification of 'Directorate of Medicine (Nephrology)' either on
15.02.2015, i.e., the date on which he had submitted the application or
when the corrigendum was published in the Employment News dated
28th March - 15th April, 2015. The petitioner had acquired the said
qualification of 'Directorate of Medicine (Nephrology)' in May,
2015.
5. The contention of the petitioner that power of relaxation
should have exercised is unacceptable. There is a provision in the
Recruitment Rules in Note 2 below Schedule V to the Recruitment
Rules which stipulates that the qualification is relaxable at the
discretion of the Commission, for reasons to be recorded, in case the
candidates are otherwise well qualified. The advertisement did not
relax the eligibility requirements. The UPSE in the present case has
not exercised the said power as there were candidates who were
eligible and available for selection. In State of Orissa and Anr. Vs.
Mamta Mohanty, (2011)3 SCC 436, the Supreme Court examined the
issue of relaxation of eligibility and has observed that requirement to
comply with the Rules is the trite and the discretionary power of
relaxation when provided for in the Rules should be exercised within
the four corners and cannot be exercised to distort the Rules. In State
of Gujarat and Ors. Vs. Arvind Kumar Tiwari And Anr., (2012) 9
SCC 545, the Supreme Court held that this power should be exercised
with care and caution to remove impediments and obstructions where
working of the Rule had become impossible; to meet emergent
situation where injustice might to caused to a person or group of
person etc. This power cannot be exercised arbitrarily only to favour
of an individual. Pertinently, in the State of M.P. Vs. Dharma Bir,
(1998) 6 SCC 165, the Supreme Court rejected a similar plea on
humanitarian grounds and had observed;-
31. "....The courts as also the tribunal have no power to
override the mandatory provisions of the Rules on
sympathetic consideration that a person, though not
possessing the essential educational qualifications,
should be allowed to continue on the post merely on the
basis of his experience. Such an order would amount to
altering or amending the statutory provisions made by
the Government under Article 309 of the Constitution."
6. Learned counsel for the respondent who appears for the
Ministry of Health and Family Welfare submits that six candidates
fulfilled the minimum eligibility criteria. They were called for
interview. Three of them had appeared and the select list has been
made. The candidate listed first the select list has not joined and an
offer letter dated 29.02.2016 has been issued to the second candidate.
7. Be that as it may, we do not find the impugned order passed
by the Tribunal is required to be upset or set aside by the High Court.
8. The Writ petition is dismissed. No costs.
SANJIV KHANNA, J
NAJMI WAZIRI, J
MARCH 21, 2016/acm
