Dr. Rajendra Kumar Sharma vs Union Of India And Others
2016 Latest Caselaw 4142 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        WRIT PETITION (CIVIL) No. 7585/2014

                                          Reserved on: 30th March, 2016
%                                       Date of Decision: 30th May, 2016

        DR. RAJENDRA KUMAR SHARMA                  ....Petitioner
                     Through  Ms. Jyoti Singh, Sr. Advocate with
                             Ms. Tinu Bajwa, Mr. Sameer
                             Sharma & Mr. Amandeep Joshi,
                             Advocates.

                                        Versus

        UNION OF INDIA AND OTHERS              .....Respondents
                      Through  Mr. Anurag Ahluwalia, CGSC &
                               Mr. Prashant Ghai & Ms. Sristi
                               Banerjee, Advocates for UOI.
                               Mr. Naresh Kaushik & Ms. Joymoti
                               Mize, Advocates for UPSC.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J.

Dr. Rajendra Kumar Sharma in this writ petition assails the final

judgment and order dated 21st August, 2014 passed by the Principal Bench

of the Central Administrative Tribunal, New Delhi (Tribunal, for short),

whereby his OA No. 138/2012 challenging the appointment of the fourth

respondent-Dr. Sudhir Kumar to the post of Assistant Director (Weed

Science), on the ground that he does not have the essential experience

qualification, was rejected and the OA was dismissed.

2. This is the second round. Earlier, OA No. 138/2012 was dismissed

vide order dated 31st January, 2012 without calling for counter/reply as the

Tribunal was not satisfied or convinced that the challenge to the fourth

respondent's appointment had merit. The Delhi High Court in Writ Petition

(C) No. 2402/2012 by order dated 4th March, 2013 had set aside this order

and the O.A. was restored to the Tribunal for fresh adjudication. The

respondents were directed to file a reply to the O.A., consequent to which

the O.A. would be adjudicated and decided on merits. The O.A. No.

138/2012 has accordingly been disposed of by the impugned order dated

21st August, 2014.

3. The short question and issue raised before us is whether the fourth

respondent-Dr. Sudhir Kumar, has the requisite practical experience in the

field of Weed Science/Weed Control, as stipulated and required by the

advertisement published by the Union Public Service Commission

(Commission for short) for the post of Assistant Director (Weed Science)

in the Directorate of Plant Protection, Quarantine and Storage, Ministry of

Agriculture. The essential and desirable requirements as advertised read:-

"2. (VACANCY No. 11061102511) ONE ASSITANT DIRECTOR (WEED SCIENCE) IN THE DIRECTORATE OF PLANT PROTECTION, QUARANTINE AND STORAGE, MINISTRY OF AGRICULTURE. The post unreserved. QUALIFICATION: ESSENTIAL: A.

EDUCATIONAL: M.Sc. Degree in Agriculture/Agronomy with Weed Science as a subject or M.Sc. Degree in Botany/Agricultural Botany with Weed Science as a subject from a recognized University or equivalent. B. EXPERIENCE: Three years' practical experience in the field of Weed Science/Weed Control. DESIRABLE: Doctorate degree in the field of specialization. Duties: Quarantine inspection/treatment of plants/plant materials for any contamination with weed seeds. Identification of exotic weed seeds. Adaptive research in evolving measures for weed control. Any other duties as may be assigned."

4. The requirements advertised were in terms of the Directorate of

Plant Protection, Quarantine and Storage, Assistant Director (Weed

Science) Recruitment Rules, 2008. The relevant recruitment rule reads:-

"Essential:

(i) M.Sc. Degree in Agriculture/Agronomy with Weed Science as a subject or M.Sc. Degree in Botany/Agricultural Botany with Weed Science as a subject from a recognised University or equivalent.

(ii) Three years practical experience in the field of Weed Science/Weed Control.

Note 1: Qualifications are relaxable at the discretion of the Union Public Service Commission in case of candidates otherwise well qualified.

Note 2: Qualification(s) regarding experience is/are relaxable at the discretion of the Union Public Service Commission in case of candidates belonging to Scheduled Castes or Scheduled Tribes. If at any stage of selection the Union Public Service Commission is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the posts reserved for them.

Desirable:

(i) Doctorate degree in the field of specialization."

5. It is not the case of the respondents that the essential qualifications

were relaxed in the case of the fourth respondent. The respondents

including the fourth respondent state that the fourth respondent fulfilled the

requirement of three years practical experience in the field of Weed

Science/Weed Control. Per contra, the petitioner submits that this aspect

was not examined.

6. Refuting the aforesaid contention in favour of the fourth respondent

apropos the prescribed minimum practical experience, the petitioner has

drawn our attention to the certificates enclosed by the said respondent

along with his application. The fourth respondent had filed several

certificates as required, to show and establish that he has practical

experience in the field of Weed Science/Weed Control. The first certificate

issued in July 2012 by the Division of Agronomy, Indian Agriculture

Research Institute records that Dr. Sudhir Kumar had worked in an ad hoc

project on weed management as a Research Associate from 19 th December,

1997 to 30th November, 1999. Besides helping in technical field

experiments on food and cash crops, layout of experiments, sowing of

crops, spraying of herbicides, collection of data, writing of reports etc. and

lab work-chemical analysis of soil, crops etc., the fourth respondent had

provided assistance in computing/statistical analysis of data. This

certificate, it is apparent, could be treated as a certificate indicating that the

fourth respondent had relevant practical experience in the field of Weed

Science/Weed Control of about two years. Albeit, the essential requirement

was practical experience in the field of Weed Science/Weed Control of

three years.

7. The other certificates are conspicuously silent and do not reflect or

state that the fourth respondent was associated with and had experience in

the field of weed science and weed control. Certificate issued by

Vivekananda Parvatiya Krishi Anusandhan Sansthan, Almora, Uttar

Pradesh dated 18th December, 1997 certifies that the fourth respondent had

worked as a Research Associate (Agronomy) from July, 1997 to

December, 1997 in the Pilot Project on Technology Assessment and

Refinement through Institution- Village Linkage Programme. This

certificate, in our opinion, does not even remotely reflect and show

involvement of the fourth respondent in a field connected or associated

with Weed Science or Weed Control. The certificate issued by Centre for

Agricultural Technology Assessment and Transfer, Indian Agricultural

Research Institute, New Delhi dated 16th June, 2000 certifies that the fourth

respondent was working with them since 22nd December, 1999 as a

Research Associate on Technology Assessment and Refinement under the

Institution Village Linkage Programme undertaken under the National

Agricultural Technology Project. The said certificate records that the

petitioner had good knowledge of crop production (food and cash crops),

research and extension work. The fourth certificate relied by the fourth

respondent dated 17th June, 2011 was issued by the Directorate of Arecanut

and Spices Development, Department of Agriculture and Cooperation,

Calicut, Kerala. The certificate records that the fourth respondent was

holding the post of Senior Technical Assistant in the said Directorate and

had attended duties related to formulation, implementation and monitoring

of development programmes on spices, medicinal and aromatic plants. He

had also carried out various production related programmes like production

and distribution of quality seeds/planting materials, conduct of farmers

training programmes, establishment and maintenance of herbal gardens etc.

The certificate issued by Additional Commissioner (Horticulture), Ministry

of Agriculture, Department of Agriculture and Cooperation dated 22nd

June, 2011 states that the fourth respondent was working with them as

Senior Technical Assistant (Crops) on deputation since 4 th May, 2006 and

was assisting senior officers in planning, coordination and implementation,

including financial releases and monitoring of the Horticulture Mission, a

centrally sponsored scheme of the Department of Agriculture and

Cooperation, for the North-East and Himalayan States. This certificate

again does not mention any association or connection with the field of

Weed Science/ Weed Control. Same is the position of the certificate dated

18th December, 1997 and another certificate dated 17th June, 2011 issued

by Directorate of Arecanut and Spices Development, Calicut, Kerala. The

last certificate has to be read along with the certificate dated 22nd June,

2011 issued by the Government of India, Ministry of Agriculture for the

fourth respondent was on deputation with the aforesaid Directorate since

4th May, 2006 and engaged in assisting senior officers in planning,

coordination and implementation, including financial releases and

monitoring of the Horticulture Mission in North-East and Himalayan

States.

8. We have also examined the Commission files, and the notings are

revealing. With reference to the advertisement dated 11 th February, 2011,

as many as 42 applications were received, including 24 applications from

general category candidates. These applications were subjected to scrutiny

and verification to ascertain whether the candidates fulfilled the essential

requirements. Eighteen applicants were found to be lacking essential

educational qualifications. Some applications were rejected on the ground

that applicants were overage or the applications were filed without fee or

insufficient fee or they had been received late, i.e., beyond the time

stipulated. The note dated 5th September, 2011 prepared by Deputy

Secretary (RV) records that only one applicant, at serial number 14, had

met the requisite educational and experience qualification and was,

therefore, the only candidate eligible to be called for interview. For the

sake of completeness, we would like to reproduce the screenshot of the

relevant portion of the file noting itself, which is as under:-

"

At another place the following noting was made:-

The words in bold "*STP of proof of being Central Govt. servant as on

closing date" and "01 candidate" were first typed and have been thereafter

scored off. The typed portion (01) candidate was scored off and the hand

written note in pencil records (02) candidates. The aforesaid scanned copy/

screenshot reflects that subsequent corrections were made after the typed

notes were recorded. The fourth respondent, candidate with roll No. 2, was

found to be ineligible as he did not have the requisite experience.

However, corrections were made by pencil and his roll number was

added/included. Thereafter, the file was processed as if the two candidates,

including the fourth respondent, were eligible. The second screen shot

shows that roll No. 2 was also deleted from the list of 23 ineligible

candidates. The numerical 23 representing the number of ineligible

candidates was scored off and written in pencil as 22. We have

deliberately excluded the names of the officers who have written and

signed the notes from the scanned copy/photoshot of the relevant file so as

not to reveal their identity. This may require deeper scrutiny and

ascertainment of true and correct facts as to why and who had made the

said changes. The charges are not signed and why they were made in pencil

and not in pen, is perplexing.

9. There is a noting by the Joint Secretary (R.II) at page No. 16, a page

which has been attached with a staple and included as a part of the file.

The screenshot of the same is as under:-

The aforesaid proposal of the Joint Secretary (R.II) dated 8th

September, 2011 was approved by the Member and the file was processed.

The file has yet another noting dated 8th September, 2011 at page No. 11,

which has been scored off and written as page No. 17. The above

quotation dated 8th September, 2011 relates to the fourth respondent. The

fourth respondent was included in the list of eligible candidates, without

ascertaining whether the said respondent had requisite work experience in

the field of Weed Science/Weed Control. On the other hand, it stands

recorded that the fourth respondent had worked on an ad hoc project of

Weed Science as a Research Associate for about two years. This work

experience as recorded does not meet the requisite work experience of

three years. It is also recorded that the fourth respondent had worked as a

Senior Technical Assistant in the Directorate of Arecanut and Spices

Development, Calicut, Kerala and as Senior Technical Assistant (Crops),

Department of Agriculture and Cooperation. The note neither states nor

records a finding that the said eleven years experience could be counted

and was in the field or connected with Weed Science or Weed Control.

The mandatory "work experience" of three years in the field of Weed

Science/Weed Control was also not examined in the aforesaid note, in spite

of the fact that as per earlier notings, on verification of documents, the

fourth respondent was recorded and declared as ineligible. Clearly, the

authorities did not take into account the requirement of the essential

practical experience stipulation in the advertisement as well as in the

recruitment rules. It was not examined whether the fourth respondent

would meet and satisfy the said minimum condition. This lapse and non

consideration would amount to and result in an error in the decision

making process. Relevant and requisite stipulations relating to essential and

mandatory work experience were not examined.

10. In view of the above, we have no hesitation and doubt in holding that

the fourth respondent did not satisfy the minimum requirement and was

ineligible for being appointed to the said post. The consequence thereof

would be that his appointment has to be set aside.

11. As we are reversing the judgment of the Tribunal, we must look into

the reasoning and the grounds given by the Tribunal for dismissing the OA

filed by the petitioner before us. We reiterate that it is a case of the

respondents that the fourth respondent, i.e., Dr. Sudhir Kumar was rightly

appointed as per the recruitment rules and had the requisite essential

qualification prescribed in the advertisement and recruitment rules. It is not

stated or pleaded that the essential requirements were relaxed for the fourth

respondent as he was a deserving candidate. The Tribunal in the impugned

order dated 21st August, 2014 has referred to the dictum that courts or

tribunals do not function as appellate bodies and scrutinise the relative

merit of the candidates for this is the job of the duly constituted selection

committee, which has experts in the subject. Reference was made to

Dalpat Abasaheb Solunke, etc. etc. versus Dr. B.S. Mahajan, etc. etc.,

AIR 1990 SC 434. In the present case, we are not examining the relative

merit of the candidates. The question raised is narrower and restricted to

whether the authorities concerned had duly applied their mind and

examined whether the fourth respondent was meeting and had satisfied the

minimum practical experience requirement of three years in the field of

Weed Science/Weed Control. The Tribunal failed to examine, whether this

exercise and examination was conducted before the fourth respondent was

selected. The interpolation and changes made in the file and recordings are

revealing. Erroneous file notings can be rectified, but some justification or

cogent reason for the correction should be stated or be palpable. The

reasons could have been elucidated and explained at the stage of arguments

or when the file was shown. The reasons recorded in the note of the Joint

Secretary (R.II) have been commented upon. The fourth respondent as per

the scrutiny was declared inelegible as he did not have practical experience

of three years in the requisite field. This is apparent and was recorded.

Subsequently, for no apparent reason it was held and observed that he was

eligible and meeting the required eligibility experience. For this reason, the

decision in the case of Maheshwar Prasad Srivastava & Antoher versus

Suresh Singh and Others, AIR 1976 SC 1404 would not be applicable. In

the said decision, it was held that in matters and questions relating to

adequacy and sufficiency of training, opinion of the Commission would

carry weight, for it has the benefit of expert opinion and they are better

situated to judge whether a particular candidate is qualified for the

particular post and the Courts would hesitate to interfere. As noticed

above, in the present case, while accepting the fourth respondent's

candidature and selecting him, the essential requirement of practical

experience of three years in the field of Weed Science/Weed Control as per

the mandate of the advertisement and Recruitment Rules was not examined

and gone into. The aforesaid notings do not record a finding or observe

that while working in the Directorate of Arecanut and Spices Development,

Calicut, Kerala and as Senior Technical Assistant (Crops), the fourth

respondent was dealing with Weed Science/Weed Control. No expert or

other officer had opined or held that the fourth respondent meets and has

requisite work experience of three years in Weed Science/Weed Control.

This relevant aspect has been ignored and not taken into consideration. For

an identical reason, the decision in the case of Union Public Service

Commission versus L.P. Tiwari and Others, (2007) 1 SCC (L&S) 944

would not be applicable. We are not re-examining the evaluation made by

the expert committee, but have only noted that the relevant examination

was not done at the time of selection and the question whether the fourth

respondent's certificate and experience of eleven years was the experience

in the relevant field of Weed Science/Weed Control, was not duly

examined and considered. Thus this is a case where there was an error in

the decision making process, as the core and relevant aspects have not been

taken into consideration. Mandatory eligibility requirement was ignored.

12. The Tribunal in the impugned order has recorded:-

"14. Admittedly, the experience certificates submitted by the respondent no.4 were issued by the organizations where he had worked in different capacities. It is common knowledge that experience certificates are issued in favour of employees by their superior officers of organizations who have had direct knowledge about the performances of the employees during the relevant period, unless they are prevented by the Heads of Organizations/Departments from doing so, and that such experience certificates are also issued under the signatures of officers who are authorized by Heads of Organizations/Departments for the purpose. The applicant has not produced any material before this Tribunal showing that the officers who had issued the experience certificates in favour of the applicant were prevented by the Heads of Organizations/Departments from issuing such certificates and/or were not authorized for the purpose. The opinion received by the applicant s wife from the Directorate of Weed Science Research in the shape of a purported information under the R.T.I.Act that the applicant did not possess the required three years practical experience in the field of weed control/weed science cannot be said to carry much evidentiary value inasmuch as such opinion/information was obtained during the pendency of the O.A. from the said Directorate by the applicant s wife who is a person interested in the present proceedings. It is not the function of the Tribunal to determine whether or not, on the basis of the experience certificates submitted by him, respondent no.4 could be held to have possessed the three years practical experience in the field of weed science/weed control. In this case, the UPSC, an expert body, has found the respondent no.4 as possessing three years practical experience in the field of weed science/weed control on the basis of the experience certificates submitted by respondent no.4. In the above view of the matter, we do not find any fault with the UPSC in holding the respondent no.4 eligible for consideration for the post on the basis of the experience certificates submitted along with the application."

The aforesaid reasoning would indicate that the Tribunal did not

examine the certificates of the fourth respondent and has made general

observations. These general observations do not meet the tests and

parameters required to be fulfilled when Courts or tribunals examine an

issue of this nature in exercise of the power of judicial review. Courts and

Tribunals, while exercising the said power, do not act as appellate bodies,

yet they do ascertain and verify, whether the authorities concerned had

applied the relevant criteria and have not acted capriciously or in an

arbitrary and discriminatory manner, to include ineligible or ignore eligible

persons. Ineligible candidates not meeting the essential requirements have

no right to either be appointed or to continue in the post. Suitability or

comparative merit is normally not examined but eligibility can be

examined. Even when examining eligibility, the opinion of the experts on

the said determination carries weight and would be rarely interfered. This

case falls under third category. The fourth respondent was found and

included in the ineligible candidates list. He lacked and did not have

requisite and mandated three years experience in the field of weed

science/weed control. Notwithstanding the accepted position, the fourth

respondent was selected contrary to the eligibility conditions prescribed in

the recruitment rules.

13. When the appointment at the initial stage is illegal and contrary to

the mandate of the recruitment rules, the illegality cannot be cured or

condoned, nor can the illegality be regularised. (See State of Orissa vs.

Mamta Mohanty (2011) 3 SCC 436 and Khub Ram vs. Dalbir Singh

(2015) 8 SCC 368).

14. In the light of the aforesaid position, the writ petition has to be

allowed and the appointment of Dr. Sudhir Kumar, the fourth respondent,

to the post of Assistant Director (Weed Science) is held to be illegal and

contrary to the recruitment rules. Writ is issued and appointment of

Dr.Sudhir Kumar as Assistant Director (Weed Science) is set aside and

quashed. However, we cannot grant the prayer and direct that the

petitioner should be appointed by stepping in as the selecting and

appointing authority. The petitioner, it is held, would be entitled to costs,

which are assessed at Rs.20,000/-. The said cost will be payable by the

official respondents.

(SANJIV KHANNA) JUDGE

(NAJMI WAZIRI) JUDGE MAY 30th, 2016