Delhi High Court
Pension Fund Regulatory & ... vs Subroto Das on 15 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 6981/2015
Reserved on: 16th January, 2017
% Date of Decision: 15th March, 2017
PENSION FUND REGULATORY & DEVELOPMENT AUTHORITY
(PFRDA) ..... Petitioner
Through: Mr. Shanker Raju, Advocate.
Versus
SUBROTO DAS ..... Respondent
Through: Mr.Prateek Tushar Mohanty, Advocate
for respondent No. 1.
Ms. Monika Arora, CGSC & Mr. Harsh Ahuja,
Advocate for respondent No. 3-UOI.
W.P.(C) 113/2016
DR. PRAFULLA RANJAN & ANR. ..... Petitioners
Through: Mr. Anand Nandan, Advocate.
Versus
PENSION FUND REGULATORY & DEVELOPMENT AUTHORITY
OF INDIA & ORS. ..... Respondents
Through: Mr. Shanker Raju, Advocate for
respondent No. 1.
Mr. Prateek Tushar Mohanty, Advocate for
respondent No. 3.
Mr. A.K. Behera & Mr. Amar Pandey,
Advocates for respondent Nos. 4 and 5.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J.
This common order and judgment would dispose of the aforestated
two writ petitions, which impugn order dated 29 th June, 2015, passed by
the Principal Bench of the Central Administrative Tribunal (Tribunal, for
short), in OA No. 3695/2013 Dr. Prafulla Ranjan & Another Vs. Pension
Fund Regulatory & Development Authority & Others and OA
No.937/2014, filed by Subroto Das against the Pension Fund Regulatory &
Development Authority (PFRDA, for short).
2. Dr. Praffula Ranjan and Sunil Agarwal had filed OA No. 3695/2013
challenging the appointment of Subrorto Das, Mamta Rohit and Anant
Gopal Das to the post of Chief General Manager in the PFRDA.
3. The PFRDA had subsequently terminated the appointment of
Subroto Das and Mamta Rohit vide order dated 13th March, 2014. Subroto
Das had challenged the aforesaid order of termination in OA No. 937/2014
before the Principal Bench of the Tribunal. By an interim order dated 20th
March, 2014 operation of the termination order was stayed. Mamta Rohit
has also challenged the order of termination, albeit before the Allahabad
Bench of the Tribunal. This OA is still pending and has not been disposed
of, possibly to await the outcome of the present writ petitions. The
operation of the order of termination in the case of Mamta Rohit has been
stayed vide the interim order dated 3rd April, 2014.
4. By the impugned order dated 29th June, 2016, OA No. 3695/2013,
filed by Dr. Praffula Ranjan and Sunil Agarwal has been dismissed and the
OA No. 937/2014 filed by Subroto Das has been allowed, quashing the
order of termination dated 13th March, 2014.
5. The PFRDA had also filed W.P. (C) No.6982/2015 against the
impugned order in OA No. 3695/2013, which was dismissed as not pressed
vide order dated 2nd September, 2015, recording that Dr. Prafulla Ranjan
and Sunil Agarwal had challenged the impugned order in the OA No.
3695/2013 in WP(C) No. 113/2016. The file of W.P. (C) No.6982/2015
was directed to be tagged with the file of W.P. (C) No.6981/2015.
6. The PFRDA was established by the Government of India vide
notification dated 10th March, 2003 and granted statutory recognition vide
Section 3 of the Pension Fund Regulatory and Development Authority Act,
2013. The PFRDA is a body regulating the pension sector schemes
including the National Pension Scheme.
7. In the 21st Meeting of the PFRDA Board held on 13th October, 2010,
the revised organization plan and the issue of recruitments were discussed.
As per the revised plan, 177 posts or positions were required, of which
only 12 had been requisitioned, thus leaving a gap of 165 posts for which
recruitment was to be made. The pay-scales and the eligibility
qualifications for different posts were finalized based on the eligibility
qualifications stipulated by the Securities Exchange Board of India (SEBI)
with some modifications to suit PFRDA‟s organizational requirements.
8. Consequent thereto, vide note dated 13th December, 2010
recruitment of 43 posts including two posts of Chief General Manger in the
scale of Rs.60600-67000 were moved for approval and initiation of the
selection process. Dr. Anoop Wadhawan, the then Chairman of the
PFRDA, who was impleaded as a respondent in the OA No. 3695/2013,
and is also a respondent in W.P. (C) No. 113/2016, vide his note dated 21st
December, 2010 made amendments to the approved eligibility
qualifications by introducing an alternative qualification of first class
graduate degree from a reputed university, so as to not restrict ambit of
selection to only those with Master‟s degree in Economics/MBA in
Corporate Finance or financial management with 55% marks in aggregate.
The Chairman, the noting observed, had been authorized by the Board to
relax any of the conditions in deserving cases. This modification was not
placed before the Board for approval at that stage. Post facto approval
was granted by the Board in their 23rd Meeting held on 30th August, 2011.
The modification/amendment in the eligibility qualifications was sent for
confirmation to the Department of Financial Services of the Union of
India, post the recruitment and selection of Subroto Das and Mamta Rohit.
9. Vide advertisement dated 1st January, 2011 applications for different
posts including the post of the Chief General Manager were invited. For
clarity and convenience in deciding the present lis, we would like to
reproduce the relevant portions of the advertisement, which is as under:-
"2. EDUCATIONAL QUALIFICATION:
. First class Bachelor‟s degree, preferably in
Economics/Commerce/Business Administration or Master
Degree in Economics/commerce/MBA in corporate finance of
financial management with 55% marks in the aggregate.
. CA/CFA/CS/CWA
. First class Bachelor‟s degree in Law or Master‟s Degree in
Law with 55% marks in the aggregate.
. Ph. D in Economics/Finance.
. First class graduate in engineering (electronics or computer
science)/ Master‟s in computers application. First class graduate
in computer science/science/commerce/operations research with
post graduate qualification in computers.
Note: PFRDA may assign additional weightage to higher
academic and professional qualifications at its discretion.
3. EXPERIENCE REQUIRED:
Post qualification experience as specified in section 1 above in
pension/financial sector, special knowledge/experience in law,
investigation, finance, economics, accountancy, administration
or any other discipline considered useful to the PFRDA.
5. MODE OF SELECTION:
a. A screening committee constituted by the PFRDA will
examine the applications and shortlist the candidates for
interview. Final selection will be after the assessment of the
suitability of the shortlisted candidates in the interview.
b. The interview will be held at Delhi. Candidates will be
reimbursed the travelling cost as admissible.
c. Merely fulfilling the eligibility conditions as regards
age/qualifications/experience, after short-listing of
candidates, would not automatically entitle any candidates to
be called for the interview. PFRDA reserves the right to
relax any of the criteria/conditions in deserving cases.
6. TRAINING AND PROBATION:
a. Probation: The selected candidates will be appointed on
probation initially for a period of one year. Upon successful
completion of the probation, the candidates will be
considered for regular appointment in their respective
Grades. The probation period may, at the discretion of the
PFRDA, be extended up to a maximum period of one year.
Failure to complete the probation period successfully may
entail termination of the services of the officer.
b. If at any later stage, it is found that the information
furnished in the application is false/incorrect or if
accordingly to the PFRDA, the candidate does not satisfy
the eligibility criteria, his/her candidature/appointment will
be cancelled/terminated at any stage, without notice or
compensation."
The minimum eligibility qualification for the post of Chief General
Manager was of first class bachelor‟s degree preferably in
Economics/Commerce/Business Administration, or a Masters' Degree in
Corporate Finance etc., financial management/MBA with 55% marks in
aggregate, or CA/CFA/CS/CWA. Seventeen (17) years of post
qualification experience in the officer cadre was mandated. Candidates
satisfying the eligibility norms were required to apply in the prescribed
format. Clause 6 (b) of the advertisement had prescribed and warned of
cancellation of candidature or appointment without notice or compensation
if at any stage it was found that the candidate did not satisfy the eligibility
criteria.
10. As per the mode of selection, a screening committee was to be
constituted for examination of the applications and for short listing the
candidates for interview. The final selection was to be made after
assessment of the suitability of the shortlisted candidates in the interview.
Clause „c‟ of paragraph 5 relating to the mode of selection had clearly
stated that merely fulfilling the eligibility conditions regarding age,
qualifications, and experience would not automatically entitle any
candidate to be called for the interview. The PFRDA had reserved the
right to relax any of the criteria/conditions in deserving cases.
11. The office note prepared on 16th March, 2011 records that the posts
of General Manager and Chief General Manager being senior level
positions, work experience in the related field would be more relevant
than educational qualifications. The essential educational qualification for
these posts would be given weightage of 20%, whereas the work
experience would carry weightage of 80%. For the posts of Manager and
Deputy General Manager, educational qualifications were to carry
weightage of 30% and work experience was to carry weightage of 70%.
For the posts of Assistant Manager and Deputy Manager, educational
qualifications were to carry 40% weightage and work experience 60%.
The screening criterion, as recorded above by the Chairman, was approved
by the lower functionaries.
12. For the post of Chief General Manager, 114 applications were
received, out of which 76 candidates were shortlisted.
13. Subroto Das and Mamta Rohit, it is an accepted position, did not
possess the bare minimum eligibility qualifications. Subroto Das is a
graduate with B.Sc. from Calcutta University with 48% marks. He
obtained an MBA degree in 2003 and thus did not meet the mandatory
requirement of 17 years post qualification experience. Mamta Rohit is a
graduate of Delhi University with 57.8% marks. She is also a post
graduate BBA in Human Resources, which degree she had acquired in the
year 2007. The post graduation degree is not in the requisite field of
finance or financial management. Thus she did not have a first class
bachelor‟s degree, preferably in Economics/Commerce/Business
Administration, or a Master‟s degree in Economics/commerce/MBA in
corporate finance of financial management with 55% marks in the
aggregate. To this extent, the said respondents, namely, Subroto Das and
Mamta Rohit do not dispute or question the position that they did not meet
the minimum eligibility qualification on account of lack of experience in
the case of Subroto Das and lack of educational qualification in the case of
Mamta Rohit. Thus, both of them were not eligible for being shortlisted
for interviews for appointment to the said post. Yet for some unrecorded
reason, their names were included in the list of 76 eligible candidates, who
had qualified, and not in the list of 38 disqualified candidates. Noticeably,
they had not asked for relaxation and at no stage prior to the short-listing
of eligible candidates for interview, were their cases examined, considered
or granted relaxation on the ground of being deserving cases.
14. Subroto Das and Mamta Rohit had secured 14 and 13.5 marks,
respectively, out of 50 in the screening process on the basis of their
educational qualification and professional experience. In the interview,
they had both secured the highest marks of 40 each out of 50. Combining
the total, the two had secured first and second position with a total of 54
and 53.5 marks, respectively.
15. What is equally pertinent and mentioned above is that no relaxation
of eligibility qualifications for short listing was ever accorded and granted
to both Subroto Das and Mamta Rohit. The files do not indicate any such
relaxation, nor there is any note justifying or giving reasons as to how
these two candidates fell in the category of most deserving cases, and
hence the power of relaxation should be exercised.
16. The Petitioners Dr.Prafulla Ranjan and Sunil Agarwal had also
applied for the post of Chief General Manager but were not selected. They
satisfied the educational qualification and had the required experience.
Sunil Agarwal made applications under the Right to Information Act and
on securing information along with Dr. Prafulla Ranjan had instituted OA
No.3695/2013. Dr. Prafulla Ranjan had also made a complaint to the then
Chairman Dr. Anoop Wadhawan and other members of the Board against
the said selection, to which no reply was received. Sunil Aggarwal had
also made complaints. In the meanwhile, the Department of Financial
Services, Government of India took cognizance of the complaints and had
examined the allegations. Dr. Anoop Wadhawan, the Chairman of the
PFRDA resigned on 13th November, 2013. On the basis of enquiry and
verification of details, the Department of Financial Services, Government
of India issued show cause notice dated 21st February, 2014 to Subroto Das
and Mamta Rohit seeking their explanation, as both of them, despite not
meeting the eligibility criteria, had been selected and appointed as Chief
General Managers. Replies received were considered but were not found to
be acceptable. Both of them were un-able to negate or contest that they
did not possess the advertised eligibility qualification. Their appointments
were cancelled vide termination order dated 13th March, 2014.
17. Referring to the advertisement, the Tribunal has observed that the
eligibility qualification/criteria could be relaxed in deserving cases. In the
absence of statutory rules, and as the advertisement had prescribed that the
eligibility criteria could be relaxed, it should be inferred that the
qualification criteria had in fact been relaxed in the case of Subroto Das
and Mamta Rohit. In other words, there was deemed relaxation of the
eligibility criteria, for the said respondents were called for interview.
Further, Subroto Das and Mamta Rohit cannot be faulted in believing that
there was relaxation, as this was an internal matter. Subroto Das and
Mamta Rohit had not concealed or given wrong details of educational
qualification and professional experience at different levels. The
authorities were estopped and barred from submitting that shortlisting of
Subroto Das and Mamta Rohit was a mistake and no relaxation was given.
The two, like all others, were assessed by giving 20% weightage for
educational qualification and 80% weightage was given for work
experience. This effectively meant that even if a candidate did not have
the necessary educational qualification and was allocated zero marks,
he/she would be still eligible for consideration based upon his work
experience. The official respondents/authorities having themselves relaxed
the eligibility conditions, cannot take a contrary stand. The post of Chief
General Manager was not an entry level post with the selection being
based on written examination followed by an interview. Therefore, the
decision of the Supreme Court in Ashok Kumar Yadav & Ors. Vs. State of
Haryana & Ors., (1995) 4 SCC 415 on the question of maximum marks to
be allocated to the interview would not be applicable and the later decision
of the Supreme Court in Union of India & Anr. Vs. N.
Chandershekharan, (1998) 3 SCC 694 would be more appropriate. Dr.
Prafulla Ranjan and Sunil Agarwal were unable to establish any proximity
between Subroto Das and Mamta Rohit and the then Chairman of the
PFRDA. In the absence of evidence, the allegation predicated on malafides
was rejected as unproven. Lastly, it was observed that the OA
No.3695/2013 filed by Dr. Prafulla Ranjan and Sunil Agarwal was barred
by limitation and bad due to delay and laches. This OA was filed on 24th
September, 2013, whereas Subroto Das and Mamta Rohit had joined their
posting on 31st May, 2011. Sunil Agarwal's assertion that the details of the
educational qualifications and experience of Subroto Das and Mamta Rohit
stood revealed on information being furnished under the Right to
Information Act was not a sufficient and good enough reason to explain
the delay and laches. The Tribunal observed that they normally do take a
sympathetic view in such circumstances to do substantial justice, but in the
present case, such approach would unsettle the long standing appointment
of Subroto Das and Mamta Rohit inasmuch as they had resigned from their
previous job and had already worked for about two and a half years, by the
time the order in the two OAs was pronounced.
18. The OA No.937/2014 filed by Subroto Das was allowed observing
that the reasoning given for dismissing OA No. 3695/2013 would apply.
Appointment of Subroto Das was valid. Referring to the alleged
unauthorized absence of Subroto Das without sanction or leave by the
authorities and his stay in the USA, the Tribunal clarified that the
authorities were at liberty to deal with the "unauthorized" absence in
accordance with law.
19. The primary contention of Subroto Das and Mamta Rohit is that
they had never concealed, withheld or gave wrong information with regard
to their educational qualifications and experience. Mamta Rohit, in her
written submissions, accepts that she had secured 57.8% in her graduation
and thus it was apparent that she had not satisfied the minimum
educational criteria. She asserts having 21 years‟ of experience as against
17 years of experience prescribed in the banking sector as she was initially
appointed in the State Bank of India after clearing the Probationers‟
examination on 16th April, 1990. She has not committed any illegality and
irregularity. The lapse, if any, it was contended, was on the part of the
authorities and not of Mamta Rohit. Hence, she should not suffer for it
was not her fault. On the question of relaxation in eligibility criteria not
being expressly recorded or mentioned in any of the notes, it was
contended that it should be deemed that she was granted relaxation as this
would be the reasonable inference. Reliance was placed on the note dated
16th March, 2011. Similar contention has been made on behalf of Subroto
Das as well.
20. We would first deal with the contention, whether there was, in fact,
any relaxation in the case of Subroto Das and Mamta Rohit, for they were
deserving candidates. The note relied upon by Subroto Das and Mamta
Rohit for this purpose dated 16th March, 2011, reads as under:-
"As recorded on page N/1, it had been instructed that all the
applications received must be screened at first on the basis of the
eligibility criteria laid down in the Newspaper Advertisement.
The issue was discussed with ED (PKT) and the Chairman. It
was emphasized that care should be taken that only relevant
qualification and relevant work experience must be accounted
for, bearing the Organisational Structure of the PFRDA in mind,
and therefore higher weightage to experience in the areas of
Regulation and Banking is to be given in the screening criteria.
As at this stage of growth, the PFRDA badly needs expertise in
these two functional areas; monitoring & co-ordination with
CRA, trouble shooting and regulating the PoPs, marketing etc.
being the topmost priority in the near future. Accordingly, the
HR team was asked to prepare the screening criteria. The
screening criteria for each of the 6 advertised post is placed at
DFA for consideration please.
2. It is proposed to assign 50:50 weightage for the screening
criteria vis-a-vis the interview. The screening criteria would be
based on a combination of ed. qual & work ex. In the 40: ratio.
3. It is proposed to have at least one member representing either
of the reserved categories in the interview committee to ensure
that fair treatment is given to candidates applying to the 12
reserved posts;
4. It is also proposed to constitute interview committees of
suitable level for each of the 6 category of posts, for which a
proposal will be put up separately. The number of candidates to
be interviewed, constitution and number of interview
Committees may be decided later, if approved.
Submitted for approval please. "
21. Thereafter, the file was processed and the Chairman on 16 th March,
2011 had made the following endorsement:-
"Chairman/16.3.2011
Keeping in view the fact that for Senior Level Position,
the work experience in a related field is more relevant than
educational qualifications, it would not be proper to keep the
ratio of educational qualifications and work experience same
for all categories from Asst. Manager up to Chief General
Manager. Accordingly, I would suggest the ratio as under:
Educational Work
Qualification experience
Astt. Mgr. 40% 60%
Deputy Mgr.
Manager 30% 70%
Dy. General
Mgr.
GM 20% 80%
CGM
"
22. In the aforesaid notings, the authorities have not examined or
considered whether Subroto Das or Mamta Rohit were cases where
minimum educational qualification or experience qualification should be
relaxed. There is no such specific recording or inferable or deducible
endorsement. It would be fallacious, or rather absurd to hold that the
aforesaid notings grant relaxation or to hold that there was deemed
relaxation in the case of Subroto Das and Mamta Rohit. Their cases or
candidature was never examined and considered. If we accept the
argument of deemed relaxation, it would be deleterious and pernicious, for
this plea would be available in all cases where the selected candidate, who
is illegally appointed, would claim relaxation. Mere short listing or issue
of appointment letters would not establish grant of relaxation.
23. The word "deemed" connotes legal fiction and an artificial
construction, and is generally used to give the words or phrases of a statute
a construction that would not otherwise prevail. (See Sudha Rani Garg
Vs. Jagdish Kumar & Ors. (2004) 8 SCC 329). Such construction in
legislation is not to be extended beyond the legislative purpose for which it
is created or the language of the section by which it is created. When a
statute enacts that something shall be deemed to have been done, which in
fact and in truth was not done, the court is entitled and bound to ascertain
for what purposes and between what purpose the statutory fiction is to be
resorted to. (Ex Parte, Walton, In re, Levy, (1881) 17 Ch D 746 p.756)
24. In State of Orissa Vs. Mamata Mohanthy (2011) 3 SCC 436, under
the heading 'relaxation', the Supreme Court has referred to several earlier
decisions on the precept of relaxation (see paragraphs 42-51 in the said
citation). The reasons for granting relaxation, it has been recorded, must be
mentioned in respect to each candidate in whose favour the power of
relaxation has been exercised. In fact, an adverse inference could be drawn
if the minutes were destroyed or the plea of non-availability of minutes is
taken. The discretionary power of relaxation should not be exercised so as
to completely distort the regulations/eligibility norms and is intended to be
used in marginal cases. It is exercised with care and caution, with
reasonable means to remove and overcome the resistance in enforcing
statutory provisions. The power or relaxation is not to be exercised in
contradiction with the intent behind the rule, so as to amount to changing
the selection criteria after the initiation of the selection process, which is
impermissible.
25. In State of Uttaranchal Vs. Alok Sharma and Ors. (2009) 7 SCC
647, the Supreme Court referred to an earlier judgment in Kendriya
Vidalaya Sangathan Vs. Sajal Kumar Roy, (2006) 8 SCC 671, wherein it
was observed that the appointing authorities were required to apply their
mind before exercising their discretionary jurisdiction to grant relaxation,
in that case, the age limit. This discretion has to be exercised only in
deserving cases and upon the recommendation of the appointing
committee/selection committee. Compliance with the Rules, it was trite,
should be fair and reasonable. The discretionary power for relaxation of
age could be exercised as provided for in the Rules and within the four
corners thereof. Reliance was placed on Karnataka Vs. R. Vivekananda
Swamy, (2008) 5 SCC328.
26. In Pramod Kumar Vs. U.P. Secondary Education Services
Commission and Ors., (2008) 7 SCC 153, it was held that appointment
made contrary to the statute and statutory rules would be void in law.
27. In the present case, there is no statutory rule and the selection was
governed by the essential requirements mentioned in the advertisement.
These stipulations would be binding. Appointment made contrary to the
essential qualifications and stipulations prescribed in the advertisement
unless the power of relaxation is shown to be exercised, would be illegal in
law. This illegality in law cannot be regularised, as has been held in
Secretary, State of Karnataka Vs. Umadevi, (2006) 4 SCC 1, National
Fertilizers Ltd. Vs. Somvir Singh, (2006) 5 SCC 493, Post Master
General, Kolkata Vs. Tutu Das (Dutta), (2007) 5 SCC 317.
28. Similarly, in Mohd. Sartaj Vs. State of U.P., (2006) 2 SCC 315, it
has been held that an illegal appointee has no right and cannot claim any
entitlement to the post. The power of relaxation has to be exercised in
public interest in a given case.
29. If we accept the argument of the respondents, in the literal sense, it
would mean that they accept that the authorities had not exercised the
power of relaxation, but nevertheless the benefit of relaxation should be
granted to them. This, in view of the legal position elucidated above,
would be fallacious and specious.
30. On the question of limitation and delay/laches also, we do not find
any merit in the reasoning given by the Tribunal, which is oscillating.
Subroto Das and Mamta Rohit were appointed and had joined their posting
as Chief Deputy General Manager on 31st May, 2011, whereas OA
No.3695/2013 was filed, as per the impugned order on 24th September,
2013. This is factually incorrect, for the OA No. 3695/2013 was filed in
May, 2013. Dr. Prafulla Ranjan and Sunil Aggarwal did not have any
information or details regarding the educational qualifications and
experience of Subroto Das and Mamta Rohit. These details and
information and illegalities in the recruitment process were ascertained and
came to their knowledge only after information and details were furnished
pursuant to applications made under the Right to Information Act, 2005.
Thereafter, they had made representations before filing the OA. Moreover,
during the pendency of the OA itself, the services of both Subroto Das and
Mamta Rohit were terminated by the authorities on 13th March, 2014 on
account of illegalities in their appointment procedure. To this extent, the
delay in filing of OA No.3695/2013 had become redundant and
inconsequential.
31. With regard to the members of the interview Board, personalities
would not determine the fate of this litigation under the constitutional
system of governance based on the Rule of Law. We would also observe
that the said Board was not concerned with the shortlisting, nor did they
examine whether the eligibility criteria mentioned in the advertisement
was satisfied. This was not within their domain. A three member interview
committee was formed by Dr. Anoop Wadhawan, the Chairman of
PFRDA. The interview committee was directed to assess the performance
of the candidates and award them marks out of 50. The Committee was
also advised by the Chairman that the candidates should be marked for
their performance in the interview alone. The remainder of 50 marks were
to be awarded for educational qualification; professional experience etc. to
be assessed by the PFRDA itself. The marks awarded in the interview were
not the foundation or basis for the grant of relaxation. This was not even
urged and contended. The interview Board had not recommended
relaxation.
32. It was submitted by Subroto Das and Mamta Rohit that the said
respondents not being at fault should not be punished or penalised even if
they did not meet the eligibility requirements. The argument is a
camouflage, a bitter one coated in sugar, which would be perilous and
result in repudiation and perversion of the Rule of Law, if accepted. It
would negate and overrule the settled principles. Subroto Das and Mamta
Rohit were aware of the essential educational and experience
qualifications, which they were conspicuously lacking. It was their duty
and obligation to ascertain and satisfy themselves, whether they met the
said qualifications. They took their chance knowing that they were falling
short of the essential qualifications. They did not ask for relaxation or
even attempt to plead and justify relaxation in their application. Both of
them had also given an undertaking signed by them, stating that they fulfil
the essential qualifications and that if they did not, their appointments
could be cancelled.
33. Counsel for Mamta Rohit has relied upon on Swarn Lata Vs. Union
of India & Ors., (1979) 3 SCC 165. In particular, our attention has been
drawn to paragraphs 51 and 54.This was a case where no statute or
regulations having the force of law were applicable. The Union Public
Service Commission had suggested essential and desirable qualifications
keeping in view the qualifications prescribed by the Government of India
in their training manual, which were accepted by the requisitioning
department. Thereafter, the Commission had issued an advertisement
prescribing essential qualification with a relaxation clause in case of
suitable candidates. The power to relax was exercised. The requisitioning
department had subsequently refused to make the appointments. In the said
factual matrix, it was observed that the requisitioning department was fully
aware that the Commission had the power to relax and, therefore, the
Commission had acted within its power in calling the candidates for
interview. In paragraph 54, distinction was made regarding another
advertisement where the power to grant relaxation was not so stipulated.
Relaxation in such cases, it was observed, would result in denial of equal
opportunity, for those who could have applied knowing that there was
scope for relaxation in deserving cases, would have applied. This would
violate the principle of equality of opportunity as mandated by Article 16.
In this case, due to non-availability of suitable persons, the power of
relaxation was consciously exercised after due deliberation.
34. On behalf of Subroto Das, reference was made to Narender Chadha
Vs. Union of India, (1986) 2 SCC 157 to assert that if power to do an act
or pass an order can be traced to an enabling statutory provision, the act or
order shall be deemed to have been done or made under the enabling
provision even if that provision was not specifically referred. The said rule
and dictum has no application in the facts of the present case. This precept
is applied when an authority passes an order relying upon a particular
provision, which is not applicable but the order has legal sanction under
another enabling statutory provision. In the facts of the present case, the
issue is not whether the power of relaxation was there. The power of
relaxation in deserving cases existed, but it is a fact that the power was
never considered or examined, and relaxation was not granted. Subroto
Das and Mamta Rohit were included in the interview list of eligible
candidates without any justification and relaxation. This is illegal and the
inference would be that this favour was wrongly extended to grant benefit
to them. Reference was also made to P.L. Lakhanpal Vs. Ajit Nath Ray &
Ors., AIR 1975 Delhi 66, a five Judges‟ Bench decision of this Court to
argue that writ of quo warranto would be only maintainable at the instance
of a Realtor and the Government and the Corporation are the necessary
parties. We fail to understand the object and purpose of referring to the
said decision which pertains to the appointment of Chief Justice of India.
Reference was also made to the PFRDA Employees Service Regulations
effective from 14th May, 2015. These Rules were enacted post the
advertisement.
35. The petitioners Dr. Prafulla Ranjan and Sunil Agarwal in W.P. (C)
113/2016 did not object to and challenge the appointment of Anant Gopal
Das, on the ground of minimum educational and experience requirements.
The contention challenging his appointment is that as against two posts
advertised, he was the third candidate to be appointed. The said contention
would fail and faulter as the advertisement had specified that the number
of posts could vary. The authorities have also not found anything wrong in
the appointment of Anant Gopal Das.
36. Resultantly, we would partly allow W.P. (C) No.113/2016, filed by
Dr.Prafulla Ranjan and Sunil Agarwal and set aside the impugned order
dated 29th June, 2015, dismissing OA No.3695/2013. The said OA would
be treated as allowed and appointment of Subroto Das and Mamta Rohit is
set aside and quashed.
37. The W.P. (C) 113/2016, filed by Dr.Prafulla Ranjan and Sunil
Agarwal, to the extent that it challenges the appointment of Anant Gopal
Das is dismissed.
38. We would also allow W.P. (C) 6981/2015, filed by the PFRDA and
set aside the impugned order dated 29th June, 2015, allowing OA
No.937/2014 filed by Subroto Das. OA No.937/2014 will be treated as
dismissed. There would be no order as to costs.
-sd-
(SANJIV KHANNA)
JUDGE
-sd-
(CHANDER SHEKHAR)
JUDGE
MARCH 15, 2017
NA /ssn
