Himanshu Kumar & Ors. vs The Union Public Service ...
2023 Latest Caselaw 3681 Del

                      *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                      %                         Reserved on :           2nd August, 2023
                                                Pronounced on:          13th September, 2023

                      +     W.P.(C) 8626/2023 & CM APPL No. 32739/2023
                            HIMANSHU KUMAR & ORS.                               ..... Petitioners
                                               Through:    Mr. Saurav Agrawal, Mr. Rajeev
                                                           Kumar Dubey, Mr. Ashish Tiwari
                                                           and Mr. Sahib Patel, Advocates.
                                               versus

                          THE UNION PUBLIC SERVICE COMMISSION & ANR.
                                                                  ..... Respondents
                                        Through: Mr. Naresh Kaushik and Mr.
                                                 Shubham Dwivedi, Advocates for
                                                 UPSC.
                                                 Ms. Arunima Dwivedi, CGSC with
                                                 Mr. Aakash Pathak and Ms. Pinky
                                                 Pawar, Advocates for UOI.
                      CORAM:
                      HON'BLE MR. JUSTICE CHANDRA DHARI SINGH

                                                 JUDGMENT

CHANDRA DHARI SINGH, J.

1. The instant petition has been preferred by 17 aspirants who appeared at the Union Public Service Commission - Civil Services (Preliminary) Examination 2023, (hereinafter referred to as "Preliminary Examination"), conducted by the Union Public Service Commission/ respondent no. 1 (hereinafter referred to as the "UPSC"), and did not qualify for the subsequent round i.e., Civil Services (Mains) Examination 2023. The petitioners are inter alia aggrieved by the respondents‟ act of

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 neither releasing the individual marks scored, cut off marks and answer keys along with the Preliminary Examination‟s result nor assigning any reason for the non-disclosure.

2. By way of this judgment, this Court has considered and adjudicated upon the issue of maintainability of the instant petition preliminarily raised on behalf of the respondents.

3. The learned counsel appearing for the petitioners, during the course of arguments, submitted that he is not pressing prayers (a) and (b) as mentioned in the petition and clarified that the petitioners are only pressing prayer (c) to the extent of paragraph No. 3 of the impugned Press Note dated 12th June, 2023 and not the entire Press Note. Therefore, the limited question for consideration, at this instance, is whether the instant petition is maintainable or, considering the statement made on behalf of the petitioners, whether this Court has the jurisdiction to entertain the reliefs which has been sought by the petitioners in prayer (c) and (d).

SUBMISSIONS

4. The learned counsel for the respondents, at the very outset, objected to the instant petition on the ground of maintainability and submitted that this Court lacks the jurisdiction to entertain and adjudicate upon the present writ petition since the consideration of the instant petition is barred by the operation of the Administrative Tribunals Act, 1985 (hereinafter referred to as "the Act").

5. It is submitted that the reliefs sought in the instant writ petition fall within the ambit of „recruitment matters‟ and further within the

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 expression "recruitment and matters concerning recruitment" as mentioned in the bare language used in Section 14 of the Act.

6. It is further submitted that the jurisdiction of this Court stands excluded by virtue of Section 28 of the Act which reads as under:

"28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the constitution- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except -

(a) the Supreme Court ; or

(b) any industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."

7. It is submitted that the counsel for the petitioners does not press prayer (a) and (b) and only confines to the prayers (c), to the extent of paragraph No. 3 and the prayer (d). It is submitted that a perusal of said prayers makes it abundantly clear that the reliefs claimed therein specifically relates to the recruitment to the All-India Service which is made through the mechanism of Civil Service Examination. The answer key referred to in the relevant prayer clauses pertains to the Civil Services Preliminary Examination. Even the Press Note, as mentioned in the prayer clause, concerns the process which is to be followed by the UPSC

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 for declaration of the answer key in relation to the said examination. By no stretch of imagination, can it be claimed that prayers (c) and (d) have no bearing on the aspects which are covered by the provisions of Section 14 and Section 28 of the Act. Further, it cannot be said that the prayers in question do not have any correlation with the recruitment to All-India Service for which the Civil Service Exam (Preliminary) Examination 2023 is conducted by the UPSC.

8. It is submitted that the Hon‟ble Supreme Court has interpreted Section 14 and 28 of the Act, in its judgment rendered by its Constitution Bench, in L. Chandra Kumar v. Union of India (1997) 3 SCC 261. The Hon'ble Supreme Court in the said judgment while comprehensively considering the above said provisions held that the powers of the Central Administrative Tribunal (hereinafter referred to as "the Tribunal") are exhaustive and inclusive of all the aspects of legality such as violation of principle of natural justice and enforcement of fundamental rights. The Hon‟ble Supreme Court also held that powers of the Tribunal under the said provisions substitute the powers of the High Court exercised by under Article 226 of Constitution of India. Reliance has also been placed on the judgments passed in Savitur Prasad v. UOI, 2017 SCC OnLine Del 12297, State of Rajasthan v. Rajendra Prasad Sharma & Ors., Civil Appeal No. 2553/2022 dated 29th March 2022, and All India NIC S&T Officers Association v. UOI, W.P. (C) 14533/2022, passed by this Court on 14th December 2022.

9. It is, thus, submitted that this Court lacks the jurisdiction to entertain the instant petition and as such the submission to the effect that

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 the said prayers can be granted by entertaining this petition is far-fetched, misconceived and misleading, hence, the same deserves to be rejected outrightly, in interest of justice.

10. Per Contra, the learned counsel appearing for the petitioners submitted that the UPSC‟s contention that Section 14(1) read with Section 28 of the Administrative Tribunals Act, 1985 would bar the present writ, is neither substantiated nor explained, and is not even supported by the judicial view on this issue. It is a mere assertion that asking for the marks, cut-off marks and answer key along with the result, instead of waiting till the end of the examination, is a matter relating to recruitment to the All India Service and that granting such reliefs will have a bearing on the recruitment thereto.

11. It is submitted that Section 14(b) of the Act grants the power to the Tribunal to hear all service matters. „Service matters‟ as defined in Section 3(q) of the Act, means "all matters relating to his (the) conditions of service". However, such a question does not arise in the present petition. Therefore, only the effect of Section 14(1)(a) of the Act is to be considered which states that the Tribunal would exercise jurisdiction, power and authority in relation to "recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence services, being, in either case, a post filled by a civilian."

12. It is submitted that for the respondents to show that there is a bar under Section 14(1)(a) of the Act against the instant petition, the respondents have to show that the matter pertains to recruitment.

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 „Recruitment‟, means the act or process of recruiting or an act of offering inducement to qualified personnel to enter into a particular job or profession. This is the basic characteristic of the term „recruitment‟ in the context of service jurisprudence. A Division Bench of the Punjab and Haryana High Court in Basant Lal Malhotra v. State of Punjab, 1968 SCC OnLine P&H 155, held that the term „recruitment‟ connotes and clearly signifies enlistment, acceptance, selection or approval for appointment.

13. It is further submitted that Section 14 of the Act has to be read in the background of Article 323A of the Constitution of India, which makes provision for the Parliament to provide for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union, State, any local or other authority under the control of the Government of India.

14. It is submitted that the word „and‟ appearing in Article 323A is conjunctive, which means that only the recruitment and condition of service of those persons who are appointed to a post which is a „public post‟ and is within the „public service‟ domain, can be brought under the umbrella of Article 323A to set up administrative tribunals for speedy disposal of service disputes. It is submitted that there is no employee- employer relationship that exists in the present matter, nor are the petitioners herein challenging selection/recruitment of the "persons appointed to public service or post", which is the mandate of Article 323A of the Constitution of India. Therefore, there is no bar whatsoever

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 under Article 323A of the Constitution, and the questions and claims raised by the petitioners can be entertained by this Court.

15. It is submitted that the declaration of marks, cut off marks and the publication of the answer key of a candidate who is already not qualified, not claiming recruitment, cannot be treated as a matter concerning recruitment.

16. It is further submitted that since the petitioners have not pressed prayer clauses (a) and (b), and have also modified prayer (c), the writ petition cannot said to be barred. It is submitted that the Preliminary Examination is not even the recruitment examination and is only a qualifying and stand-alone examination.

17. The learned counsel for the petitioners submitted that the petitioners are not presently challenging the result of the Preliminary examinations or re-examination or claiming recruitment or participation in any examination for recruitment. The petitioners have not qualified the examination and the reliefs being sought by the petitioners merely pertain to declaration of marks, cut off marks and release of the answer key along with the result before the lapse of one year. It is submitted that such reliefs cannot be treated as matters concerning recruitment. The declaration of marks, cut off marks, mark sheet and answer key along with the result will not affect the recruitment process or give appointment to the petitioners since the information being sought by the petitioners will ultimately be given by the UPSC after one year. Hence, publishing the answer key along with the result will not affect the recruitment process in any manner.

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31

18. It is also stated that the instant writ raises a substantial question of general public importance for the entire student community which has fallen for the consideration of this writ court. It is submitted that that the purpose of giving the marks, cut off marks and answer key is that the students are aware of how much marks they scored, the tentative marks to be secured the next time to qualify and can also ascertain, and rectify in future, the errors committed. Further, if an aspirant finds that he has secured extremely low marks in comparison to the tentative cut off, he may decide to invest his time, energy and efforts into something else instead of continuing with the preparation for the Civil Services Examination. This would also lead to saving time, money and would also substantially reduce the burden of number of students.

19. It is submitted that not providing to the students, the answer key of an exam they have appeared for, not considering the representations of the candidates despite a particular time window being provided for the same, asking questions which are disproportionately vague, testing candidates‟ ability to answer only on the basis of guesswork, is not only arbitrary but defies all principles of fairness, logic and rationality and is a question which can be adjudicated by this Court by way of exercising its writ jurisdiction.

20. It is further submitted that even the Parliamentary Standing Committee on Personnel, Public Grievance, Law and Justice in its Report No. 131, i.e., Report on Review of functioning of recruitment organizations of Government of India has recommended that answer key

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 for UPSC Examination be published right after the Preliminary stage. The relevant portion of the said report is reproduced hereunder:

"The Committee, therefore, recommends that UPSC may take steps to publish the answer key right after the preliminary stage of the civil services examination and allow candidates to raise objections."

21. It is submitted that it is evident that the issue of release of the answer key of the UPSC Preliminary Examinations is an issue which must be considered by the concerned Department and it is prayed that directions may be given by this Court for the same.

22. It is submitted that the respondent no. 1/UPSC has relied upon the general judgments where the facts are entirely different as discussed hereafter:

(i) L. Chandra Kumar v. UOI (Supra) The Hon‟ble Supreme Court in this case held that „the Tribunals may perform a supplemental role in discharging the powers conferred by the aforesaid Articles‟ overruling the earlier decision in the case of S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124, which had held that the Tribunals were substitutes to the High Court. Despite this, UPSC in its preliminary objection states that the Tribunal is in-substitute of the powers of this Court.

(ii) Savitur Prasad v. UOI (Supra)

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31 In this case, the challenge was against an Order passed by the Hon‟ble President of India placing the appellant therein under suspension, while a criminal offence was under investigation against the appellant. This case was a clear case where there existed an employer-employee relationship and thus, would come within the definition of „service matter‟. The Tribunal thus had the jurisdiction over this case. However, the facts of the petitioners‟ case before this Court stand on a completely different footing.

(iii) All India NIC S&T Officers Association v. UOI (Supra) In this case, a Writ of Mandamus was filed before this Court seeking recall of part of a Notification issued under the subject „Personnel Policy for Group „A‟ S & T Officers of Ministry of Electronics and IT and its Organisation‟ and a Circular issued by the Ministry of Electronics and IT relating to promotion of, and assessment process and criteria and conditions of promotions. The grievance related to the discrimination between those officers, who were promoted prior to the change in policy. This is also a case directly concerning the persons in service, thereby affecting the conditions of service. However, there is no such situation in the instant case.

23. To give force to his arguments, the learned counsel for the petitioner has also placed reliance upon the judgments passed in Kanpur University v. Sameer Gupta & Ors, (1983) 4 SCC 309, and Padma Sharma v. Director of Education, 1989 SCC OnLine HP 81.

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By:GAURAV SHARMA Signing Date:13.09.2023 12:38:31

24. It is submitted that the declaration of answer key along with the result is a right of a student and grievances relating to infraction of such right cannot be relegated to the Administrative Tribunal and accordingly, these questions can be considered by this Court by exercising its powers under Article 226 of the Constitution of India.

ANALYSIS & FINDINGS

25. Heard learned counsels for the parties and perused the record.

26. The learned counsels for the parties addressed this Court only on the issue of maintainability of the instant petition and as such, this Court is restricting itself to adjudicating the question of maintainability of the case at this stage.

27. The crux of the arguments made by the learned counsel for the petitioners is that this Court as a writ court, while exercising its power under Article 226 of the Constitution, can entertain the instant petition. On the other hand, the learned counsel for the respondents have argued that this Court is barred from entertaining the instant petition because of the restraint placed by the provision