Delhi High Court
Balram Sahu vs Union Of India & Others. on 30 May, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 3696/2014
Reserved on: 17th March, 2016
% Date of Decision: 30th May, 2016
BALRAM SAHU ....Petitioner
Through Ms. Jyoti Singh, Sr. Advocate
with Mr. Sameer Sharma, Ms.
Tinu Bajwa and Mr. Amandeep
Joshi, Advocates.
Versus
UNION OF INDIA & OTHERS. .....Respondents
Through Mr. Jasmeet Singh, CGSC & Mr.
Srivats Kaushal, Advocate for
respondent Nos. 1 and 2.
Mr. Naresh Kaushik & Ms.
Megha Singh, Advocates for
respondent No. 3-UPSC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.
1. Balram Sahu in this writ petition impugns order dated 20 th March, 2014
passed by the Principal Bench of the Central Administrative Tribunal, New
Delhi (Tribunal, for short) whereby his OA No. 1414/2012 questioning the
appointment of S. Mani Vannan as Deputy Drug Controller (India) has been
dismissed.
2. A number of contentions were raised by the petitioner before the
Tribunal, albeit the contention raised before us is rather concise. Before we
deal with the said contention, the factual matrix may be noticed. Applications
were invited by the Union Public Service Commission for filling up five posts
of Deputy Drug Controller (India), including one post each for Scheduled
Caste and Other Backward Category Candidates. Balram Sahu, the petitioner,
and S. Mani Vannan, the fourth respondent, were Other Backward Caste
candidates who had applied and the later stands appointed to the said post.
The appointment of the fourth respondent is under challenge.
3. The essential qualifications as prescribed and mentioned in the
advertisement, read as under:-
"A. EDUCATIONAL: Master's degree in
Chemistry/Pharmaceutical Chemistry / Bio-Chemistry /
Pharmacy / Pharmacology of a recognized university or
equivalent.
B. EXPERIENCE: Twelve years experience in dealing
with problems connected with drug standardization and
control of drug standards or in the manufacturer or testing of
drugs.
DESIRABLE: Experience of administration of the Drugs
and Cosmetics Act and the rules thereunder and /or of
manufacture and testing of drugs and/or dealing with
problems connected with Import and Export of drugs."
Thus, the candidates were required to have a Masters' degree in
Chemistry/PharmaceuticalChemistry/BioChemistry/Pharmacy/Pharmacology
from a recognized university or equivalent. Experience of twelve years in
dealing with problems connected with drugs standardization and control of
drug standards or in the manufacture or testing of drugs was mandated. The
desirable qualification mentioned was experience in the administration of the
Drugs and Cosmetics Act and the rules thereunder or manufacture and testing
of drugs or dealing with problems connected with the import and export of
drugs.
4. On the question of qualifications of the fourth respondent-S. Mani
Vannan, it is an undisputed fact that he is a diploma holder, graduate and post
graduate in Pharmacy. His educational qualifications as mentioned in the
application form of the fourth respondent, which are not under challenge,
read:-
"
Level Exam Division/ Year of Duration of Board Subject Subject of
passed/De Grade passing the /Univ. Specializa
gree Trg. Degree/Dipl tion
% of
marks oma
PG M. First 2008 Two Years The Pharmaceu
Pharmacy Tamil tics
Nadu
Dr.
M.G.R.
Medical
Univers
ity
UG B. First 1989 Four Years Annama Pharmaceut N.A.
Pharmacy lai ical
Univers Sciences
ity
Diplo D. First 1985 One Year Annama Pharmaceut N.A.
ma Pharmacy lai ical
Univers Sciences
ity
"
5. The same application form relating to experience of the fourth
respondent states:-
"
Office/In Post Part time/Contract Exact dates to be Total Period (in years) Scale of Nature
stt. Firm held Basis/ad given pay of
hoc/regular/Temp/ duties
pmt. (indicate day, month
& year)
From To Year Mont Days
s hs
O/o Drugs Permanent 03/09/19 Till Date Eleve Six One Rs.19,980/- As per
Assistant Inspecto 98 n (Basic) + Section
Drug r Rs.4800/- 21 of
Controlle (Grade D&C
r (India), Pay) Act,
CDSCO, 1940
U.B. and
Zone, Rules
Bangalor 52 of
e D&C
Rules,
Wockhar Technica Permanent 10/09/19 31/08/98 Five Eleve Twen Rs.6519/- Incharg
dt Health l Officer 92 n ty e of
Care Quality
Limited, Control
Alathur, Functio
Chennai ns
Nicholas Apprenti Temporary 17/09/19 16/09/19 One - - Rs.1000/- Trainee
Laborator ce 90 91 (consolidat Chemis
y India ed) t in
Limited Trainee Quality
Mumbai Control
6. One of the issues raised by the petitioner before the Tribunal was that
work experience of the fourth respondent before he had acquired the post
graduate degree in Pharmacy in 2008, cannot be counted. The said contention
has not been raised and pressed before us. The contention was rejected
relying on decisions in M.B. Joshi versus Satish Kumar Pandey & Others,
(1993) Supp. 2 SCC 419 and D. Stephen Joseph versus Union of India,
(1997) 4 SCC 753, wherein the Supreme Court has held that in the absence of
rules to the contrary, work experience would include service or experience of
the required nature prior to acquisition of the educational qualification.
Reference was also made by the respondents to Santosh Pal Meena versus
UPSC & Others, (2014) 213 DLT 218. As already noted, this contention was
not pressed before us.
7. The submission of the petitioner was that the fourth respondent had
concealed facts and had not specifically disclosed that he had included in his
work experience the period of two years when he was studying for a post
graduate degree in Pharmacy from 2006 to 2008. This study period of two
years cannot be counted and included in the requisite work experience. Our
attention was drawn to column 3 of the application form of the fourth
respondent which has been reproduced above. The fourth respondent had
included in the experience period, the two year term when the said respondent
was studying for the post graduate degree of Masters in Pharmacy. The said
contention in our opinion, should be rejected for the fourth respondent had
specifically stated that he had studied and obtained a post graduate degree in
Pharmacy in the year 2008 and the duration of the course was two years. This
fact was not concealed, but disclosed and stated in the application form. The
petitioner had also noticed and ascertained this fact from the application form.
This information has not been gathered from a third source. Once facts were
stated, it was for the authorities thereafter to decide whether to exclude or
include this period from work experience. It is apparent that while
undergoing the post graduate course, the fourth respondent was in
employment. The fourth respondent may have wrongly included the period of
two years when he was studying for the post graduate degree in the work
experience period, but this error and mistake would not result in rejection of
his application for concealment or suppression of facts, for several reasons.
Firstly, he had given and furnished full details of period of study for the post
graduation degree. Secondly, whether or not this period of employment
should be counted in work experience is a matter of perception and capable of
two views. Once full details and facts were stated, the authorities had to
examine and make a call. Lastly, even if we exclude this period of two years,
the fourth respondent still had work experience of more than twelve years,
i.e., the minimum eligibility requirement mentioned in the advertisement and
the recruitment rules. The respondent had worked as a Drug Inspector for 9
years and 6 months (after excluding period of two years), for 5 years and 11
months as a Technical Officer in Wockhardt Health Care Limited, Alathur,
Chennai and one year from 17.9.1990 to 16.09.1991 in Nicholas Laboratory
Ltd., Mumbai. The work experience was in the relevant field and this is not
debated and disputed.
8. The principal contention of the petitioner before us is that the UPSC
had received a large number of applications for appointment to the post of
Deputy Drug Controller (India) and had resorted to short-listing by fixing
work experience of 16 years as the criteria. Our attention was drawn to the
information furnished to the petitioner under the Right to Information Act,
2005. We have examined the relevant papers obtained by the petitioner under
the Right to Information Act and after considering the same, find the
contention has no merit and has to be rejected. The file notings of the UPSC
would indicate that the posts advertised included posts reserved for Scheduled
Castes and Other Backward Category. As a large number of applications had
been received, it was decided to adopt a short-listing criteria. Initially, two
criterias were suggested; (i) educational qualification be raised to Ph.d. and
requisite experience to 13 years or (ii) in the alternative, educational
qualification should be retained as advertised and requisite work experience
should be raised to 16 years. The second suggestion was accepted with one
modification that the work experience for the Scheduled Castes and the Other
Backward Category candidates was reduced to 15 years instead of 16 years.
We had also seen the original file which was produced by the counsel for the
UPSC before us and do not find anything to indicate that the reduction of
work experience for short-listing of candidates belonging to Scheduled Castes
and Other Backward Category has been interpolated or changed subsequently.
Noticeably, this plea was not specifically raised by the petitioner before the
Tribunal. Since both the petitioner and fourth respondent are OBC candidates,
the short-listing criteria would be the same, i.e., 15 years. The fourth
respondent certainly meets the aforesaid requirement of work experience of
15 years, even if we exclude two years from the aforesaid work experience for
the said respondent was studying for the post graduate degree in Pharmacy
from 2006-2008. The total work experience as mentioned by him, after
excluding the said period of two years, would still be more than fifteen years
in the relevant field.
9. In view of the aforesaid position, we do not find any merit in the
present writ petition and the same is dismissed.
(SANJIV KHANNA)
JUDGE
(NAJMI WAZIRI)
JUDGE
MAY 30, 2016
VKR
