Delhi High Court
Union Public Service Commission vs Tarun Arora on 1 February, 2017
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3003/2016, CM Nos. 12596/2016 and 2359/2017
Date of Decision: 1st February, 2017
UNION PUBLIC SERVICE COMMISSION ..... Petitioner
Through Mr. Naresh Kaushik, Advocate
versus
TARUN ARORA ..... Respondent
Through Ms. Satya Siddique, Mr. Dalip Singh and
Ms. Nukul Baisoya, Advocates
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
The petitioner- Union Public Service Commission (UPSC) impugns the
order dated 27th January, 2016 whereby OA No. 1051/2014 filed by Dr. Tarun
Arora, the respondent before us, has been allowed. The impugned order directs
that the respondent should be considered for the post of Assistant Professor
(Pharmacology).
2. The respondent had approached the Principal Bench of the Central
Administrative Tribunal (Tribunal) by way of aforesaid OA after his
representations dated 17th February, 2014 and 20th February, 2014 were
considered and rejected by the UPSC by the order dated 24th March, 2014. The
said order dated 24th March, 2014 was passed by the UPSC pursuant to the
directions given by the Tribunal in OA No. 925/2014 titled Dr. Tarun Arora vs.
UPSC & Ors.
3. The present controversy pertains to the online application form filled by
the respondent for the post of Assistant Professor (Pharmacology). The relevant
portion of the details pertaining to the educational qualifications filled by the
respondent in the online application form read as under:-
Educational Qualification (s):
Qualification Degree Subject Qualifica- Specializati University/ Duration Date of Division Result Date
Type tion Level on/ College From-To Notification /Class Type/ of
Mandatory of Result Degree
Subject Result/Issue Score
Of Final
Marksheet
Graduation- Delhi Jul 1997- 28-12-2001 IInd Percentage/ 22-02-
Essential MBBS -MBBS- Medical/ University Dec2001 56 2003
Dental/Vet/ Delhi/
AYUSH University
College of
Medical
Sciences
4. The respondent, as per the aforesaid declaration, had stated that he had
obtained MBBS Graduation- Medical/Dental/Vet/AYUSH from the College of
Medical Sciences, University of Delhi. The date of the degree was 22 nd
February, 2003 and the final mark sheet was issued on 28th December, 2001.
The respondent had not disclosed or stated any particulars of his post graduate
qualification.
5. The essential qualifications as specified in the advertisement had
stipulated:-
"QUALIFICATIONS : ESSENTIAL :
A. EDUCATIONAL:
(i) Same as in item No.10 above.
(ii) Post Graduate degree in the concerned specialty i.e.
M.D.(Pharmacology), MD (Pharmacology & 5 OA No.1051/2014
Therapeutics), Ph D (Pharmacology), D Sc (Pharmacology) or
equivalent . (For equivalence of DNB qualifications with MD/MS
or DM/M.Ch. the candidates holding DNB qualifications would
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 : Three years' Teaching experience in the
concerned specialty (i.e. Pharmacology) as Lecturer/
Tutor/Registrar / Demostrator/ Sr. Resident after the requisite post
graduate degree qualification. (The teaching experience in any
other post like the post of DGMO/MO shall not be considered for
eligibility purpose for recruitment to the Teaching posts).
6. The respondent's candidature was rejected as the minimum qualification
prescribed for the post as per the advertisement, was an MBBS degree along
with a Post Graduate Degree in the concerned speciality i.e. MD
(Pharmacology), MD (Pharmacology & Therapeutics), Ph.D. (Pharmacology),
DSc.(Pharmacology) or equivalent. Accordingly, the respondent was not
shortlisted and called for the interview for selection.
7. The respondent had thereupon filed OA No. 925/2014 and by an interim
order, he was permitted to appear in the interview, subject to the outcome of the
said OA.
8. The Tribunal, in the impugned order, has noted that the respondent had
produced his Post Graduation Certificate which is in the form of a degree,
certifying that he was a Doctor of Medicine having qualified in the examination
held in 2007. For the sake of clarity, we would like to reproduce the findings
and reasoning of the Tribunal for allowing the prayer made by the respondent,
which reads:-
"8. This leaves us in no doubt that the applicant is indeed
qualified for the post and it was on account of inadvertent
mistake and deficient proficiency in computer application that
he failed to mention the qualification in his application form. So
there is not a least doubt that the rejection of his candidature
was just and proper and there is no other way that the
respondents could have acted. However, we cannot overlook
the fact that in the present day Indian Government job holds a
huge allurement to the prospective candidates. We have also
taken a note of the fact that this advertisement has been made
after a period of 14 years. It is not in dispute that this Tribunal
is often beseeched by applicants who are otherwise qualified
for different jobs but on account of one technical error or other
in filling up the application form has been excluded from the
same. In the judgment dated 30.10.2015 in OA No.4583/2014,
this Tribunal was faced with large number of applicants who
had the existing qualification but had failed to bubble the
columns correctly in the online application form. This being an
admitted position, this Tribunal after taking into account the
decisions in the previous cases observed as under :-
"20. In view of the above legal position and in view of
the fact that the applicants were already permitted to
take the examination provisionally by virtue of the
interim orders dated 23.12.2014 and results of the same
are yet to be declared by the respondents, we are of the
considered view that the ends of justice would be met if
the respondents are directed to consider the cases of the
applicants, along with others as per their merit.
21. In the circumstances and for the aforesaid reasons,
the aforesaid OAs are disposed of with a direction to the
respondents to consider the candidature of the
applicants and further process their cases in accordance
with rules with regard to the selection and appointment
by declaring their results within eight weeks from the
date of receipt of a copy of this order. However, this
order shall not preclude the respondents from verifying
the qualifications and suitability of the applicants, as
per rules. No costs."
9. The Tribunal has referred to another order passed by it dated 30th
October, 2015 in OA No. 4583/2014, wherein a large number of applicants who
had the required qualifications but had failed to correctly mark the columns in
the online application form, were granted relief with the direction to consider
their candidature after examining the documents.
10. The issue in question, according to us, is covered by the decision of the
Division Bench of this Court dated 31st May, 2016 passed in Writ Petition (C)
No. 5224/2016 titled Anju Bharti vs. GNCT of Delhi. In the said case, the
petitioner therein had also failed to fill up details relating to her educational
qualifications and experience. This failure had proved costly and she was not
shortlisted. The Division Bench had held:-
11. We would not accept the argument that the application form
was confusing. This submission is a cover up for the lapse and
error made. The petitioner had failed to carefully read the form
and in the facts of the present case, the error which have (sic.
has) been inadvertent, would deny her any relief.
XXX XXX
13. Similar plea was raised and rejected in W.P.(C) No.
9949/2009, Union Public Service Commission vs. Government
of NCT of Delhi decided on 25.01.2010, with the following
observations:-
"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 examination
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 bread (sic. 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.
28. The matter may be looked at from another point
of view. The UPSC has rejected the candidature of
45 persons due to non-submission of the required
documents and/or submission of documents in the
wrong format. If any relief is granted to the
Respondents before us, surely it would be
appropriate to grant a similar relief to other
similarly placed candidates, some of whom may not
have approached the Tribunal for relief. If this
exercise were to be undertaken, perhaps the entire
examination would require to be cancelled. In our
opinion this is neither in the interest of the
candidates who have qualified nor is it in the public
interest to cancel the entire examination for the sake
of accommodating a few persons, such as the
Respondents.
29. The facts of this case are singular and we are of
the opinion that given the very large number of
applications received and the number of candidates
involved, we must give the benefit of the necessity of
sticking to procedural requirements to the UPSC."
14. In Dr. Vineet Relhan vs. Union Public Service Commission
and another, W.P.(C) 13451/2009 decided on 13.01.2010 it was
held that the petitioner would not succeed as she has not
submitted the relevant documents. Dismissing the petition the
High Court had observed :-
"10. In so far as the present case is concerned,
there is nothing on record to suggest that the
Petitioner submitted the requisite documents at the
appropriate time. That apart, it is not as if the
Petitioner is uneducated or could not have filled the
form intelligibly. He claims to hold a degree of
M.D. (Dermatology) and he ought to have been
clear about the fact that the requisite certificates
must be furnished alongwith the application form.
For his failure to do so, the Petitioner has only
himself to blame.
11. From the counter affidavit filed before us, it
appears that the candidature of some other
candidates were also rejected on the ground that
they failed to submit the requisite certificate of
educational qualifications, experience, community,
etc. It has also been mentioned in the counter
affidavit that the UPSC had clearly mentioned in the
advertisement that no provisional claim would be
accepted and the requisite certificates must be filed
along with the application form. Given these facts,
we are not inclined to re-open the selection process
or interfere with the impugned order."
15. In Union Public Service Commission vs. Dheerender Singh
Paliwal, W.P.(C) No. 2734/2010 decided on 30.09.2010, the
judgment of the Tribunal was reversed and set aside, for the
following reasons:
"11. The reasoning of the Tribunal is that the
respondent had a Master's degree in Zoology,
photocopy whereof was submitted by him after
attesting the same and since the prerequisite to
undertake the Master's course was a graduation
degree, it could safely be inferred that the
petitioner had Zoology as a subject at the
graduation level.
12. UPSC has questioned the logic and the
reasoning of the Tribunal by urging that today it is
possible to switch disciplines at the graduation
level and due to inter-disciplinary relationship it is
possible to obtain a Master's degree in a discipline
having no direct relationship with the same
discipline at the graduation level. In any case,
urges UPSC, it conducts thousands of entrance
tests in which lakhs of candidates apply and that
UPSC is not to conduct inquisitorial or deductive
exercises; the candidates have to strictly comply
with the letter of the advertisement. With reference
to the advertisement in question, UPSC highlights
that what more could it do other than to repeatedly
highlight to the candidates the requirement of
submitting the necessary attested copies of the
certificates establishing the eligibility of the
candidate. If the candidate chose to remain
negligent, he had to suffer.
13. A similar issue had arisen before the Tribunal
when various Original Applications filed by
Lawyers were allowed. Pertaining to the post of
Assistant Public Prosecutor the advertisement
concerned clearly stipulated that minimum
educational qualification was a Degree in Law
from a recognized University. Three years
experience at the Bar was also stipulated as an
eligibility condition. The applicants before the
Tribunal had furnished selfattested photocopies of
enrolment certificates issued by the State Bar
Council. They did not submit self-attested
photocopies of L.LB degree which they claimed to
possess and urged before the Tribunal that it was
known to one and all that the prerequisite of
enrolment with the State Bar Council was a Degree
in Law. The Tribunal held in their favour. By and
under judgment and order dated 25.1.2010 WP(C)
No.10058/2009 and connected writ petitions were
allowed by a Division Bench of this Court holding
that the letter of the advertisement had to be
complied with and since UPSC conducts a large
number of exams, it is impracticable to expect
UPSC to give a go by the instructions that have
been categorically and specifically mentioned in
the advertisement. The plea that procedure is the
hand made of justice was repelled by holding that
in practical life, to give procedure a complete go by
would mean that nobody would be obliged to follow
the procedure resulting in unmanageable
situations. It was observed that if UPSC was
compelled to accept procedurally incomplete
applications there would be serious practical
difficulties that it would have to encounter and this
may well lead to a break down in the system.
14. We respectfully concur.
15. We have highlighted herein above the repeated
emphasis at different places in the advertisement
repeatedly cautioning the candidates to strictly
comply with each and every requirement of the
advertisement. The respondent must suffer for
being negligent.
16. As regards the plea of discrimination, Shri
Naresh Kaushik learned counsel for UPSC informs
us that applications were invited for 37 disciplines,
as detailed in the advertisement, and the same were
processed disciplinewise by different Under
Secretaries at UPSC and that one Under Secretary
wrongly accepted applications of two persons, but
not in the discipline in which the respondent had
applied, but this would not entitle the respondent to
any relief.
17. We concur. Equality in the negative is not
recognized by law. There cannot be equality in a
wrong."
11. In the case of Anju Bharti (supra), like in the present case, the applicant
had pleaded extra ordinary and peculiar case for she was allowed to participate
in the interview and had secured 7th rank in the order of merit. The respondent
herein similarly pleads that he was allowed to appear in the interview and being
a deserving candidate, should be appointed. He has also stated that the post of
Assistant Professor (Pharmacology) was advertised after about 14 years and
some posts of Assistant Professor (Pharmacology) are still vacant.
12. We are not in a position to accept the said argument in view of the ratio
as expounded in the decision of Anju Bharti (supra) and other judgments
mentioned therein.
13. The advertisement in question had clearly stated and warned that the
candidates would be shortlisted for interview on the basis of the information
provided in the online application form. Under the head 'WARNING', the
advertisement, in bold letters had stipulated as under:-
"6(B). Candidates shortlisted for interview on the basis of the
information provided in the online applications submitted by
them will be required to send self attested copies of
documents/relevant certificates in support of the claims made
in the application as and when demanded by the Commission.
" WARNING":
CANDIDATES WILL BE SHORT-LISTED FOR INTERVIEW
ON THE BASIS OF THE INFORMATION PROVIDED BY
THEM IN THEIR ONLINE APPLICATIONS, THEY MUST
ENSURE THAT SUCH INFORMATION IS TRUE. IF AT ANY
SUBSEQUENT STAGE OR AT THE TIME OF INTERVIEW
ANY INFORMATION GIVEN BY THEM OR ANY CLAIM
MADE BY THEM IN THEIR ONLINE APPLICATIONS IS
FOUND TO BE FALSE, THEIR CANDIDATURE WILL BE
LIABLE TO BE REJECTED AND THEY MAY ALSO BE
DEBARRED EITHER PERMANENTLY OR FOR A
SPECIFIED PERIOD BY THE:
COMMISSION FROM ANY EXAMINATION OR SLECTION
HELD BY THEM.
CENTRAL GOVERNMENT FROM ANY EMPLOYMENT
UNDER THEM.
Anyone filling up the application form was required and ought to have
taken notice of the said warning. The instructions had specifically enjoined and
mandated that the applicant was required to give full details of their educational
qualifications in the online application form. Further, the applicants were
advised to satisfy themselves before applying that they did possess at least the
essential qualifications laid down for the post. No query asking for advice as to
eligibility was to be entertained. A printout of the online application form,
along with the documents, were to be produced subsequently if the candidate
was called for interview. Thus, there was no procedure or methodology to
check and verify the certificates of the applicants before short listing the
applicants for interviews.
14. We appreciate and can understand the frustration of the respondent as he
has the requisite qualifications, yet would suffer for the lapse and error on his
part in filling the online application form. At the same time, to accept the plea
of the respondent in the present case would lay down the wrong precedent,
which would lay the foundation for administrative confusion and chaos. The
selection process would halt, get stalled, and would possibly collapse.
15. The Courts, while examining such issues have to maintain a right balance
between the mistake and chance to rectify the lapse, and the administrative
difficulties and consequences. Administrative difficulties, thus, should be
balanced with the adverse impact befalling the candidate. A strait jacket
precept may not be universally applicable. The nature of the selection process,
the terms stipulated, whether the rectification and amendment would make the
selection process unyielding and unmanageable, are different facets which must
be considered. Where the application forms are vague and unclear, the benefit
must and should be given to the applicant.
16. In the present case, the administrative difficulties which are compelling
must be given primacy, for otherwise the selection process would be impede,
become disorderly and crumble. The present case does not warrant indulgence
and concession to the respondent.
17. Pursuant to the advertisement in question, 109 applications were
received. The respondent had applied in the General Category for which 77
applications were received. On scrutiny, 48 out of 77 general category
candidates were found eligible and called for the interview. Candidates had
been able to correctly fill up the application form. In these circumstances, the
respondent's feeble attempt to urge that the online registration portal was
defective and, therefore, the respondent was unable to correctly fill up the form
and provide complete details of the essential educational qualifications, fails
and should be rejected.
18. The respondent has submitted that he having furnished and given details
of his experience under the column 'General Experience', the scrutinizer should
have inferred that the respondent had the requisite post graduate qualification.
The said contention again has to be rejected. The UPSC cannot work on the
basis of supposition and inferences of such nature and any such attempt would
be undesirable. The educational qualification column was specific. The UPSC,
while scrutinising the applications, would first examine the essential
qualifications, and if a candidate does not possess the essential qualifications
other columns need not be examined.
19. In view of the aforesaid, the impugned order dated 27th January, 2016 is
set aside and quashed. The writ petition is allowed. The OA No. 1051/2014
filed by the respondent would be treated as dismissed. There will be no order as
to costs.
SANJIV KHANNA, J
CHANDER SHEKHAR, J
FEBRUARY 01, 2017
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