Case BriefsHigh Courts

Uttaranchal High Court: Manoj Kumar Tiwari, J., decided a petition which was filed by the petitioner challenging the order dated 17-04-2021 passed by Dean (Academics), AIIMS, Rishikesh wherein petitioner’s representation, made pursuant to the order of this Court passed in WPMS No.794 of 2021, had been rejected.

Petitioner had applied for admission in PG Diploma Course, pursuant to a notification issued by AIIMS Rishikesh in the month of August, 2020 sand election for admission to said PG Diploma course was to be made through a competitive examination. He was one of the 13 candidates shortlisted for the interview; he appeared in the interview but was not given admission. There were 05 seats available in the said course namely, PG Diploma in Respiratory Medicine, but only 04 seats were filled and since petitioner was the 5th candidate in order of merit, therefore, he had filed the writ petition which was disposed of by order dated 01-04-2021 with liberty to the petitioner to make a representation and the Competent Authority in AIIMS, Rishikesh was directed to take decision thereupon within a period of two weeks. Dean (Academics), AIIMS, Rishikesh had rejected petitioner’s representation vide order dated 17-04-2021 thus the instant petition was filed.

The Court observed that out of the 13 short-listed candidates, only 12 appeared for interview and out of those 12 candidates, 04 were given admission in PG Diploma (Respiratory Medicine) and 1 seat was still lying vacant and it was also an admitted position that the petitioner stands 5th in order of merit in the selection for admission to the aforesaid course. The petitioner was not given on the ground that he had scored only 17.47 percentile in the selection process but the Court observed that the impugned order is silent as to whether there was any condition regarding cut-off marks stipulated before commencement of selection process and in this situation the admission cannot be denied.

The Court set aside the impugned order dated 17-04-2021 and directed the Dean (Academics), AIIMS, Rishikesh to reconsider petitioner’s representation on merits and pass a speaking order in accordance with law.

[Laxman Singh Brijwal v. Union of India, 2021 SCC OnLine Utt 485, decided on 19-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Counsel for the petitioner: Mr Pankaj Tangwan

Counsel for the respondents: Mr Rakesh Thapliyal, Assistant Solicitor General assisted by Mr Lalit Sharma

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu, JJ. sets aside the impugned order and allowed the appeal.

Background

The facts of the case are such that a combined notification (Geology and Mining Department and Panchayat & Rural Development Department and Public Works Department i.e. PWD) governed by 2008 Rules, 2011 Rules and 2016 Rules respectively was issued for filling up the posts of Draughtsman/Assistant Draughtsman (Civil) specifying the eligibility conditions and prescribed qualifications in terms of the relevant rules. The test was conducted, and a provisional list of successful candidates was declared when it was noticed that the selected candidates were not having the ‘prescribed qualifications’ under the Rules and the Advertisement, but were having much higher qualification of Degree or Diploma in Civil Engineering and such other subjects. A representation to the Board followed by a petition was filed but to no avail. It was held that the relevant Rules and Advertisement did not stipulate any higher qualifications of Diploma, Degree or Post Graduation in the subject concerned, but for stipulating ITI, it was decided that the persons with higher qualifications would not be considered and included in the list of eligible candidates. But nothing was mentioned as to why the same analogy was not applicable in the case of the PWD. The learned Single Judge held that the higher qualification of Degree/Post Graduate Degree in Civil Engineering would presuppose the lower qualification as per advertisement, in view of the law declared by the Apex Court in Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596. The answer given in the ‘positive’ by the learned Single Judge, dismissing the writ petition challenging the proceedings is put to challenge by the instant appeal.

Submissions

Counsel for the appellants Mr Prateek Sharma submitted that having directed the Government to give effect to the undertaking that they would modify the select list in respect of the Mining & Geology Department, by excluding the higher qualified candidates and confining it to the candidates having the specific qualifications as prescribed in the Rules and notified in the Advertisement, the learned Single Judge went wrong in not extending the said benefit in the case of the PWD involving exactly similar Rules and the similar qualifications as given in the advertisement, which in fact has resulted in differential treatment. This has resulted in patent arbitrariness and discrimination on the parts of the State, violating Article 14 of Constitution of India.

Counsel for the respondents submitted that the qualification prescribed in the Advertisement is only the ‘minimum qualification’ and that there is no bar either in the Rules or in the Advertisement that the persons with higher qualifications will not be considered. It was further submitted that the Rules do not place any bar in selecting candidates with higher qualification and that it is sustainable in view of the law declared by the Supreme Court in Jyoti K.K. (supra) that possession of higher qualification pre-supposes lower qualification. It was also submitted that there is absolutely no merit in the appeal as all the candidates placed in the list are candidates who have proved their merit by virtue of their qualification and performance.

 Scope of the verdict in Jyoti K.K (supra)

The Supreme Court in Jyoti KK. (supra) held that if the candidate has acquired the higher qualification in the same faculty, such qualification can certainly be stated to presuppose acquisition of the lower qualification prescribed for the post.

The Court observed that the decision was rendered with reference to a statutory rule, particularly Rule 10(a) (ii) of the 1956 Rules which enabled reckoning of higher qualification which presupposes the acquisition of lower qualification prescribed for the post as sufficient for appointment to the said post.

The matter came up for consideration in Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404 wherein it was held that the verdict passed by the Apex Court in Jyoti K.K. (supra) was on the basis of a specific enabling rule i.e. Rule 10(a) (ii) of the 1956 Rules, where the higher qualification presupposed acquisition of lower qualification and in the absence of any statutory rule in this regard, such inference cannot be drawn.

Observations

The Court observed that no rule in the ‘2016 Rules’ can be referred enabling to reckon the ‘higher qualification’ as well, which presupposes the acquisition of lower qualification for appointment to the post of Assistant Draughtsman in the PWD. It was observed that because of the absence of any such enabling rule to reckon the higher qualification presupposing the lower qualification for recruitment in the Mining & Geology Department, the Government has already taken a decision to modify the list by excluding the candidates having higher qualifications and to confine the same only to the specific qualification as contained in the Rules/Notification. Despite the fact that the rule position is exactly same in the PWD (as in the case of Mining & Geology Department), such a course was not pursued by the Respondent/ Government which results in blatant differential treatment.

Decision

In the above facts and circumstances, we do not find any justification for the Respondents to have provided a differential treatment for recruitment to the post of Assistant Draughtsman in the ‘PWD’, unlike the course sought to be pursued in respect of the ‘Mining & Geology Department’, having exactly similar rules governing the eligibility conditions/qualifications as notified in the advertisement.

In view of the above, appeal was allowed and impugned decision was set aside.[Praveen Kumar Rajak v. State of Chhattisgarh,  2021 SCC OnLine Chh 648, decided on 18-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra* and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

On 02-06-2016, government of Maharashtra issued a requisition to the MPSC to conduct the Limited Departmental Competitive Examination (“LDCE”) for selection of candidates to the post of Police Sub Inspector. The Home Department had notified 828 vacancies, out of which 642 were from the open category and 186 were from various reserved categories for promotion to the post of Police Sub-Inspector. MPSC recommended the names of 828 candidates, out of which 642 were from the open category, who had secured 253 marks and above; and 186 candidates were from the various reserved categories, who had secured 230 marks and above in departmental examination.

Meanwhile, government vide G.R. dated 22-04-2019 took a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination which was objected by MPSC, contending that,

“As per Article 320 of the Constitution, the MPSC has the power to appoint candidates to various posts in the State. The government had taken the decision without consulting MPSC, which was a serious irregularity, and would hamper the functioning of the Commission.”

Relevant rules governing promotion and recruitment were Rule 4 and 5 of Police Sub-Inspector (Recruitment) Rules, 1995:

Rule 4: Appointment to the post of Police Sub- Inspector by promotion, selection on the basis of limited departmental examination and nomination shall be made in the ratio of 25:25:50.

Rule 5: Notwithstanding anything contained in these rules, if in the opinion of Government, the exigencies of service, ‘so requires, Government may with prior consultation with MPSC make appointment to the post of Police Sub-Inspector in relaxation of the ratio prescribed for appointment by promotion selection on the basis of limited departmental examination or nomination.”  

In the above background, various Original Applications were filed by candidates to challenge the Policy decision dated 22.04.2019 on the ground that the additional 636 candidates who were directed to be accommodated to the post of Police Sub-Inspector, was contrary to the Recruitment Rules, and would have the inevitable effect of distorting the ratio for recruitment through the Limited Departmental Examination. The Tribunal vide interim Order directed that Status Quo be maintained with respect to the 636 additional candidates which was vacated by the Tribunal on the request of respondents.

Aggrieved by the order of the Tribunal, the appellants approached Bombay High Court in writ jurisdiction. The High Court, however rejected the petition and  issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period.

Observing Rule 5 of Recruitment Rules, 1995, the Bench stated that, government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power, which may be resorted to only in rare and exceptional circumstances. The Bench further observed,

The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27-06-2016 which is violative of Arts. 14 and 16 (1) of the Constitution. The Bench held,

“Promotional prospects of the appellants would be seriously prejudiced; if a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the appellants.”

Hence, the Court directed that G.R. dated 22-04-2019 would remain stayed during the pendency of proceedings before the Tribunal. The order of the Tribunal whereby it had vacated the interim Order 18-10-2019, and order of the High Court was set aside. The Tribunal was further directed to decide the pending O.A. within a period of six months at the same time to ensure that the additional 636 candidates were given notice of the pending O.A., to enable them to appear and participate in the proceedings.

[Gajanan Babulal Bansode v. State of Maharashtra, 2021 SCC OnLine SC 57, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together 

*Judgment by: Justice Indu Malhotra

Appearances before the Court by

For appellant: Senior Advocate Vinay Navare

For State: Advocate Sachin Patil

Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Vinod Chandran and V. G. Arun, JJ., addressed the present petition filed by BSNL against the order of Central Administrative Tribunal.

The Tribunal had upheld the claim of the respondent for consideration of promotion as Sub Divisional Engineer (“SDE”) in 3% disability quota under the Persons with Disabilities Act, 1995; thereby allowed the O.A. while relying on the judgment in Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153.

BSNL contended that there was a reference made by another Division Bench of the Supreme Court regarding the judgment relied on the Tribunal. Hence, the order of the Tribunal suffered with flaws.

The Court observed that the reference had now been answered by the Supreme Court in Siddaraju v. State of Karnataka, 2017 SCC OnLine SC 1940, whereby the Larger Bench had affirmed the decision of the Division Bench. Therefore, now from promotions to vacancies, even where there is no direct recruitment, the 3% quota for disabled persons has to be complied with. The Court upheld the order of the Tribunal and directed BSNL to consider the respondent for promotion to the post of SDE on completion of three years as Junior Telecom Officer (“JTO”) w.e.f. 23-07-1996. It was further directed that promotion to the post of Divisional Engineer should also be considered on the expiry of six years from the date of notional promotion as SDE.

Counsel for BSNL, T. Sanjay sought time for the purpose of enabling the organisation to get the details of the disabled persons and consider them according to their seniority to be accommodated in the 3% vacancies on All India basis, contending that now when promotions were to be made on the basis of quota of 3% as prescribed under the Act of 1995, it had become necessary that the other disabled persons, who might be entitled to be considered, also be given an opportunity.

The Court accepted the prayer of BSNL and granted it time of four months. The Court noticed that the respondent had applied for voluntary retirement from the post of Divisional Engineer and if promotions were granted to him notionally from an earlier date, fixation of salary would have to be carried out and increments too had to be granted in the higher scale. It was held that though on such notional revision the respondent would not be entitled to any arrears of pay, the retirement benefits including any ex-gratia amounts paid in lieu of voluntary retirement, should be revised in accordance with that and the arrears if any should be paid as well. [Bharat Sanchar Nigam Ltd. v. M.G Prabhakara Panicker,  2020 SCC OnLine Ker 8664, decided on 23-01-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of Rajeev Kumar Shrivastava and Sheel Nagu, JJ., dismissed the instant petition, whereby the petitioners sought to avail the benefits of subsequent relaxations in essential qualification.

The grievance of the petitioners was that they possess the qualification of Post Basic B.Sc (nursing) course without integrated CCH curriculum and as per the advertisement (August-September 2020) for the post of Community Health Officer; the said Post Basic B.Sc (nursing) course without integrated CCH curriculum was a disqualification. A subsequent instruction had been issued by National Health Mission on 23-11-2020 to allow even those persons having post basic B.Sc nursing course without integrated CCH curriculum to be eligible.

Counsel for the Mission, Sankalp Sharma contended that the Mission had decided to apply this amendment in the requisite qualification for the subsequent selection process and not for the current process which had already begun.

The Court expressed that, “It is trite principle of service jurisprudence that once process of recruitment commences on issuance of advertisement, no changes in the essential qualification/disqualification can be made during subsistence of the said recruitment.” The Court observed that, according to service jurisprudence the rules of game cannot be changed, once it has begun. The aforesaid time tested principle is based on sound reasoning that in case such change in the rules of recruitment is permitted then large number of persons who had not applied for being not eligible as per the recruitment and who would become eligible based on the relaxation made, would be deprived of their right to be considered for public employment which would amount to violation of their fundamental right under Article 16 of the Constitution. The Court relied on Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51, whereby the Supreme Court had held that, the rules of the game meaning thereby, the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.

Therefore, the Court disposed of the present petition holding that the subsequent relaxation in the essential qualification/disqualification notified by the Mission could not be made applicable to the on-going recruitment in question and thus petitioners cannot reap the advantage of the same. [Ramkhiladi Sharma v. National Health Mission, 2020 SCC OnLine MP 2975, decided on 05-12-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of P. Venkata Subba Rao (Technical Member) and P. Dinesha (Judicial Member) allowed an appeal filed against Order-in-Appeal passed by Commissioner of Customs, Central Excise & Service Tax, (Appeals-II).

The appellant was a 100% Export Oriented Unit (EOU) and was engaged in research and development services of advanced pharmaceutical ingredients and other biopharma products, a wholly-owned subsidiary of Nektar USA. An employee of the parent company, Nektar USA, was sent to India on a secondment to work as a full-time Managing Director of the appellant company, during his tenure as the Managing Director of the appellant, the ‘secondee’ was a full-time employee of the appellant and that there was a relationship of employer-employee between the appellant and the ‘secondee’. Further, since the ‘secondee’ was a citizen of America, the parent company and the appellant company entered into a ‘salary reimbursement agreement’ for the sake of administrative convenience so that the salary of the ‘secondee’ would be paid in foreign currency outside India by the parent company which would be reimbursed by the appellant to its parent entity. The issue that arose was whether the reimbursement of

salary paid to the ‘secondee’, to the parent company, Nektar USA amounted consideration for the provision of manpower recruitment and supply agency services, within the meaning of section 65(68) of the Finance Act, 1994.

The Tribunal relied upon the Supreme Court judgments of Nissin Brake (India) (P) Ltd. [2019 (24) GSTL 563 (Tri-Del.)], reiterated in Komatsu (India) (P) Ltd. v. Commr. Of Service Tax, and Bangalore Bench of the Tribunal in the case of Goldman Sachs Services (P) Ltd. v. Commr. Of Service Tax, Bangalore.

The Tribunal while reproducing the relevant portion of the Komatsu India (P) Ltd. v. Commr. Of Service Tax judgment allowed the appeal holding that the revenue was not disputing that the ‘secondee’ was always under the control and supervision of the appellant and that the appellant’s parent company had absolutely no obligation to pay the salary and other charges to the ‘secondee’ but for remitting secondee’s salary in foreign exchange based on the salary reimbursement agreement.[Nektar Therapeutics (India) (P) Ltd. v. CCE, 2020 SCC OnLine CESTAT 382, decided on 10-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In the case where Direct Recruits to the newly created posts of Tax Assistants in the Finance Department of the Government of Rajasthan claimed seniority over Departmental Promotees, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ held that the seniority of the promotees given on the basis of their dates of appointment was justified by Rule 27 of the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975.


Background


  • In 2009, the Finance Department of the Government of Rajasthan granted approval for creation of 554 posts of Tax Assistants.
  • On 4th October 2010, a Departmental Selection Committee was constituted for recruitment of both categories and proceedings were initiated soon filling all the for 554 posts of Tax Assistants. In accordance with the rules, it was proposed to fill the 80% quota of direct recruits to the extent of 443 vacancies and 111 from amongst Departmental Promotees.
  • Amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules, 1975, made with effect from 01.12.2010, prescribed the manner of filling of posts of Tax Assistants.
  • On 16.05.2011, provisional results were declared for the test held for Direct Recruits.
  • The results of the tests for the Departmental Promotees were announced on 14.06.2011 and the promotion letters were issued on 23.06.2011.
  • The appointment orders of the Direct Recruits were issued subsequently; on 04-07-2011.
  • On 05.06.2013, the Commercial Taxes Department of the State of Rajasthan published a seniority list in which those appointed as DPs, in the 20% quota were shown as senior to the Direct Recruits.

Why was the seniority challenged?


The Direct Recruits argued their appointment, later than the Departmental Promotees is the result of manipulation by the department (or, rather some officers in the department) who wished to favor the Departmental Promotees; and that since their selections began before that of the DPs, the second proviso is attracted, for determination of inter se seniority. They also argue that the selection- in terms of the rules, “subsequent selection” necessarily refers to a chronologically later event.

In the present case, the recruitment of the Direct Recruits began with the advertisement in January, 2011 (and Second proviso to Rule 27 (1) 14 thus, in the earlier financial year, having regard to Rule 2 (l)) whereas the selection process for Departmental Promotees began in May, 2011.

It was urged that the amended rule 27, only speaks about the seniority on the basis of date of appointment; however, the proviso (2) clarifies the rule for reckoning seniority when there are two advertisements for the same post, filled through different categories (sources) of candidates. Therefore, the main rule will only apply when the recruitment is through the same advertisement. It cannot be applied in a case where another advertisement is issued for the same post after the release of the results of the first advertisement and appointment order is given in the later case. This process of arbitrary recruitment will always deprive of the candidates in their order of seniority in their whole service tenure which is against the principles of Article 14.


What the Supreme Court said


The Court noticed that the main provision of Rule 27 of the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975 was amended  as to clearly provide that seniority in the cadre would be fixed from the dates of appointment of the employees, or officers, to the cadre. However, the provisos of the Rules 27 were retained.

On a plain reading of the Rule 27 [1] and the two provisos, the Court summarised the following position:

(a) before the amendment of 2002, seniority of personnel appointed to the “lowest categories of posts” in any department was to be determined as from the date of appointment; however, for promotees, it was to be from the date of selection;

(b) after the amendment of 2002, seniority has to be fixed (by reason of Rule 27 (1)) as on the date of appointment to the post or service;

(c) however, in the case of pre-state integration of state (of Rajasthan) or pre-integration of services, seniority could be “modified or altered by the Appointing Authority on an ad hoc basis”- this clearly was meant to be a “sunset” clause, i.e. operative for a limited period;

(d) the second proviso,- which is the one pressed into service by the Direct Recruits, states that seniority of those selected earlier will be determined over those selected latter

Explaining the scope of Rule 27, the Court said the principal mandate of the rule is that seniority is determined on the basis of date of appointment (“shall be fixed from the date of their appointment”). Proviso (2) lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process.

The Rajasthan High Court was of the opinion that this rule (i.e. proviso) applied to selections from the same source, i.e. where two sets of direct recruits were appointed, those selected through a previous recruitment process, would rank senior to those recruited through a later recruitment process. The Supreme Court termed this interpretation ‘salutary’.

It said,

“There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process (such as shortlisting, calling of candidates for interviews etc.), during which period, a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior, and if those from the earlier process are appointed later, the proviso clarifies that candidates from the earlier process would rank senior, despite the main rule speaking of a date of appointment based seniority.”

The Court applied the same logic to departmental promotees, as well, if two batches of promotees are appointed, through selection. It said,

“The second limb of the second proviso clarifies that when merit based, or seniority based promotions are resorted to, the applicable norm would be seniority in the feeder cadre, to forestall any debate about the rule of merit (in the selection) being the guiding principle.”

Hence, keeping in mind that the advertisements for filling the entire cadre, in both the quotas or streams of recruitment were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies and also the completion of procedure, such as verification of antecedents, the Court held that the seniority of the promotees given on the basis of their dates of appointment was justified.

[Mahonar Lal Jat v. State of Rajasthan, 2020 SCC OnLine SC 956, 26.11.2020]


*Justice S. Ravindra Bhat has penned this judgment. Read more about him here. 

For State of Rajasthan: Additional Advocate General Dr. Manish Singhvi,

For Departmental Promotees: Senior Advocate R. Venkatramani

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramachandra Menon and Parth Prateem Sahu JJ., rejected the appeal finding no tenable ground to interdict the impugned verdict.

The factual matrix reveals that a post of Librarian was sought to be filled up on contract basis. The Appellant, who is a Graduate in Library Science and a Post Graduate in Commerce, besides having the qualification of Post Graduate Diploma in Computer Applications, participated and was declared as ‘not eligible’ for the post on the ground that she has secured only less marks in the Graduation. Consequently, she filed objection asserting that no minimum percentage of marks for Graduation is stipulated in Chhattisgarh School Education Services (Educational and Administrative Cadre) Recruitment and Promotion Rules, 2019 for appointment to the post of Librarian. Further, the grievance not being redressed the Petitioner approached the Court by filing the writ petition contending that, since Rules do not stipulate any minimum marks for Graduation even for regular appointment, it cannot be insisted for appointment to the post on a contract basis. The prayer sought for is to quash/set aside the condition of minimum qualification of 50% marks in Graduation for the post of Librarian.

Counsel for the appellants submitted that there is no dispute with regard to ‘Rules’ which governs the appointment to the post in question. But the stipulation of qualification in Advertisement is stated as not in conformity with the said ‘Rules’.

Counsel for the respondents relied on judgment Maharashtra Public Service Commission v. Sandeep Shriram Warade (2019) 6 SCC 362 submitted that the merit was never sought to be compromised or diluted and it is very much within the purview of the power and prerogative of the Respondents to stipulate minimum 50% marks for Graduation, which was never against the Rules; as the Rules only prescribed the ‘minimum’ qualification. It was also contended by reliying on judgment Madras Institute of Development Studies v.. K. Sivasubramaniyan (2016) 1 SCC 454 that the writ petitioner having participated in the process of selection cannot take a ‘u-turn’ and challenge the process after coming to know that she has not been selected.

Rule 6 of ‘Rules’ dealing with ‘method of recruitment’ reads as follow:

“6. Method of recruitment. – (1) Recruitment to the service, after the commencement of these rules, shall be made by the following methods, namely:-

(a) By direct recruitment through selection (competitive examination/interview) and Limited Departmental Examination;

(b) By promotion of members of the service;

(c) By transfer/deputation of persons who hold in a substantive capacity such posts in such services as may be specified in this behalf;

(d) By absorption of person / persons who hold in such services an serve on any equivalent salary/post in any Government service.”

 The Court observed that “the appointment could be made by Direct Recruitment through selection (Competitive examination / Interview) and when such selection is made to the limited number of post notified, it may not be necessary or possible to call all persons who are having the minimum qualifications stipulated in the Rules, that too, for appointment on ‘contract basis’. Even in the case of a selection process having both the written test and interview, it is settled law that all the persons who get qualified in the written test need not be called for the interview and that the number can be limited to appropriate extent, based on the number of vacancies available.”

The Court further observed that the Appellant can not be heard to say that she is actually aggrieved because of considering persons having better merits (who have secured more than 50% of marks for Graduation) for the post, as appointment has to be made by identifying the most meritorious candidate. It was further observed that the Appellant was aware of the contents of the  Notification right from the beginning and it was in her open eyes that she participated in the selection process and protested her selection only after the merit list was released.

In view of the above, interference was rejected and appeal was dismissed.[Sajida Khan v. State of Chhattisgarh, 2020 SCC OnLine Chh 668, decided on 19-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: A Division Bench of V. Chitambaresh and Ashok Menon, JJ. contemplated a writ petition where the question raised was related to the written exam conducted by Kerala Public Service Commission in 2015 for the recruitment to the post of Food Safety Officer. Commission had challenged the impugned order of the Administrative Tribunal which directed for a revised list.

The disputed question before the Tribunal was, “In a standard Fruit jam, the content of total soluble solids should not be less than:” four options were given for the questions and answer published by the Commission was alleged incorrect to which the candidate had raised an objection. The learned counsel for the respondent-candidates relied on the query dated 16-5-2016 and the answer elicited under the Right to Information Act, 2016 from the Food Safety and Standard Authority of India. It was submitted that answer referred to Food Safety and Standards Regulations, 2011 wherein standards of Jam are prescribed. According to which the correct option of the answer was not the one published by the Commission. The list of candidates was published and the interview commenced, subsequently, the final ranked list was published by the PSC. Respondents preferred the original applications before the Kerala Administrative Tribunal which sought to publish a revised ranked list. The respondents contended that they would have secured higher ranks if the correct answer (c) was accepted for awarding marks to the candidates in the written test. The respondents, however, did not choose to implead anyone in the ranked list at least in a representative capacity after paper publication though many in the ranked list would be prejudicially affected.

The Tribunal by impugned order in original petitions directed the petitioner-PSC to take appropriate measures to effect changes in the ranked list and to accept the answer (c) as the correct one. Commission thus, challenged the impugned order of the Tribunal.

The PSC in the meantime obtained an expert opinion from a relevant authority in the subject matter. It was indicated by the Expert that both the answers i.e one provided by the Commission and one the candidates alleged were acceptable and were in conformity. The petitioner relied upon the judgment of Supreme Court in Ran Vijay Singh v. State of U.P., (2018) 2 SCC 357, where the Court held that, “In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.”

The Court observed that, the answer provided by the Commission is not far off the mark, further they relied on the expert opinion which suggested that both answers were acceptable. A genuine doubt raised as to the correctness of the answer key and the court in that event should give the benefit of doubt to the examination authority – PSC. It further emphasized that although it was submitted that about 90 candidates had already been advised by the PSC even before the preferring of the original applications by the respondents before the Tribunal, none of those who are in the ranked list have been impleaded even as eo nomine parties in the original applications which are bad for non-joinder of necessary parties. The decision in Rajesh Kumar v. State of Bihar, (2013) 4 SCC 690, was distinguishable inasmuch as the challenge therein was well before the appointment. The Court stated that rank list without those included therein being impleaded as party respondents at least in a representative capacity is impermissible in law. The Tribunal ought to have presumed the correctness of the answer key and should have extended the benefit of doubt to the PSC and dismissed the original applications for non-joinder as well. Hence, the order of Tribunal was set aside.[Kerala Public Service Commission v. Vimal C.A, 2019 SCC OnLine Ker 1676, decided on 28-05-2019]

Case BriefsHigh Courts

“Wherever democratic institutions exists experience has shown that to secure an efficient civil service it is essential to protect it as far as possible from political or personal influences and give it that position of stability and security which is vital to its successful working as the impartial and efficient instrument by which Governments, of whatever political complexion may give effect to their policies. In countries where this principle has been neglected, where the “spoil system” has taken its place, an inefficient and deorganized civil service has been the inevitable result and the corruption has been rampant.” 

                       – The Lee Commission, 1924

Tripura High Court: S. Talapatra, J. allowed a petition directing Tripura Public Service Commission (TPSC) to complete the recruitment process within eight months from the date of judgment.

TPSC by an advertisement dated 30-04-2016 had invited applications for recruitment to the Tripura Civil Services (TCS) Group-A gazetted by direct recruitment in terms of Rule 5 of the Tripura Civil Services Rules, 1965. The petitioner here had applied for the said selection in terms of the said advertisement. Since the petitioner was found eligible he was asked to appear in the preliminary examination. The result of the preliminary examination was published by the TPSC in their notification dated 30-10-2017. In this regard, there was no controversy. The petitioner was thus selected for appearing in the Main Examination. TPSC further published a notification showing the date of examination for various optional papers. Suddenly, on 05-06-2018 the General Administration (Personal and Training) Department issued a notification laying down the new recruitment policy for all establishments under the administrative control of the Government of Tripura. According to the new notification “weightage for the interview should not exceed 10 per cent of total marks. In exceptional case weightage of interview may be increased beyond per cent with the approval of cabinet, if sufficient justification exists.” Following the notification, TPSC started the process of termination of the recruitment process in which the petitioner was appearing. Hence, the present petition.

The learned counsels for the petitioner S.M. Chakraborty along with B. Chakraborty, contended that all the recommendations made in the new recruitment policy could only come into force prospectively. It was submitted that such cancellation was the grossly arbitrary and colourable exercise of power. He also mentioned the Judgment given in Gopal Krushna Rath v. M.A.A. Baig, 1999 1 SCC 544, in which it was well settled that no retrospective operation of the subsequent rules can be given in a pending selection process. It was also decided in the case that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. In the concerned matter, the notification clearly said to have a prospective effect thus, the petitioner urged the Court to order TPSC to continue the process of selection and to complete it before a stipulated deadline as decided by the Court.

A.K Bhowmik learned counsel for the respondent categorically contended that the petitioner has no cause of action on cancellation of the recruitment process as the Government has inherent power to cancel the recruitment process, whether initiated by the Government Departments or by the TPSC. It had been further asserted that all existing recruitment processes initiated by the respective departments or the TPSC have been cancelled as the old recruitment policies failed to ensure transparency and fair play in the recruitment. He further vehemently submitted that at any moment, the State Government as an employer can withdraw any recruitment process and initiate a fresh process in terms of the new recruitment policy. The selection process can be revoked by the State Government at any stage in terms of the changed recruitment policy. As such, the writ petition is bereft of merit and is liable to be dismissed.

 The Court observed that respondent had utterly failed to provide any reason for cancelling the recruitment process inasmuch as no foundation had been raised to show that action has been taken to protect any greater or public interest the mode prescribed by those service rules for selection is infested impediment in following that procedure. Thus, the Court allowed the petitioner and ordered TPSC to complete the process of selection within 8 months of the judgment.[Samudra Debbarma v. State of Tripura, 2019 SCC OnLine Tri 145, decided on 14-05-2019] 

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The Bench of Neeraj Kumar Gupta, Information Commissioner, in an order in respect of an appeal filed before CPIO, M/o Railways, Railways Board, New Delhi stated that for the information sought is a part of a limited question bank the disclosure of which may compromise the basic integrity of the concerned question bank.

In the present application filed by the appellant under Right to Information Act, 2005 the information has been sought on 4 points, including inter-alia: (i) copy of answer sheet of aptitude test and (ii) to provide T-score in certified forwarding letter, etc.

Appellant submitted that complete information has not been provided to him, further he stated that the copy of his aptitude answer sheet as sought has not been provided to him along with information on point numbers 3 and 4.

Respondent in the present case relied on the decision of Delhi High Court in Ministry of Railways v. K.G. Arun Kumar, WP (C) No. 2173 of 2013 and CM No. 4120 of 2013 and stated that information on point no. 1 cannot be provided to the appellant as the questions in the aptitude test are very limited. Information sought on point nos. 3 and 4 are personal information of the third party which is exempted from disclosure under Section 8(1) (j) of the RTI Act.

Decision of the Commission:

Commission after hearing the submissions of the parties and on perusal of records agreed with the reply on point nos. 3 & 4 of the RTI application. Further, the Delhi High Court decision in Ministry of Railways v. K.G. Arun Kumar, WP (C) No. 2173 of 2013 and CM No. 4120 of 2013 was relied on and based on the same the decision was concluded stating that the question paper, answer key and answer sheet related to the aptitude test and that the question papers source their origin from a limited question bank the disclosure of which can jeopardize the pattern of questions asked in the said aptitude test.

Keeping in view the submission of PIO and Delhi High Court’s decision, Commission stated that: it understands the sensitivity of the matter and is hereby instructing the PIO to ensure the appellant while inspecting his answer sheet and answer key does not take photograph or obtain hard/soft copy of the same. [Mrityunjay Kumar Sharma v. CPIO, M/o Railways, RRB, Siliguri, WB, Second Appeal No. CIC/RAILB/A/2017/154940, Order dated 04-04-2019]

Legislation UpdatesRules & Regulations

G.S.R. 85(E)—In exercise of the powers conferred by clause (b) of sub-section (2) of Section 156 of the Indo-Tibetan Border Police Force Act, 1992 (35 of 1992), and in supersession of the Indo-Tibetan Border Police Force, Armourer Cadre (Group ‘B’ & ‘C’ posts), Recruitment Rules, 2010, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules regulating the method of recruitment to Group ‘B’ and ‘C’ posts in Armourer Cadre in Indo-Tibetan Border Police Force, namely:—

1. Short title and commencement—(1) These rules may be called the Indo-Tibetan Border Police Force, Armourer Cadre (Group ‘B’ and ‘C’ posts), Recruitment Rules, 2019.

     (2) They shall come into force on the date of their publication in the Official Gazette.

2. Application—These rules shall apply to the posts specified in column (1) of the Schedule annexed to these rules.

3. Number of post, classification and level in the pay matrix—The number of said post, their classification and level in the pay matrix attached thereto shall be as specified in columns (2) to (4) of the said Schedule.

4. Method of recruitment, age-limit and other qualifications, etc.—The method of recruitment, age limit, qualifications and other matters relating thereto, shall be as specified in columns (5) to (13) of the aforesaid Schedule.

5. Disqualification— No person, —

     (a) who has entered into or contracted a marriage with a person having a spouse living; or

      (b) who, having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for        appointment to the said post :

Provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rule.

6. Medical Fitness—Notwithstanding anything contained in these rules, only those persons who are in medical category SHAPE-I, shall be eligible for appointment under the provisions of these rules.

Please follow the link for detailed notification: Notification

Ministry of Home Affairs

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition against the order of the respondent whereby the petitioner was declared unfit for the post of Constable (GD) in the Border Police Force.

The petitioner was subjected to a medical fitness examination by the respondent wherein he was found unfit due to “Gynaecomastia left”. The petitioner preferred an appeal against the order, however, he was again declared unfit by the review medical board vide the impugned order.

The Court perused the guidelines approved by the “Ministry of Home Affairs” for conducting the medical examination tests for recruitment of GOs and NGOs in the Central Armed Police Forces (CAPFS) and Assam Rifles (AR) and observed that the candidates to review medical examination cannot be rejected only on clinical findings and such clinical reports should be supported by corroboratory investigation reports and if needed opinion of specialists/super specialists of government hospitals/medical colleges/government approved medical centres should also be taken into account.

The High Court held that the respondent had not followed the guidelines strictly and the review medical report was not supported by a proper investigation. Hence, the Court quashed the impugned order, as it was found to be cryptic, non-speaking and in violation of the guidelines issued for the purposes. It further directed the respondent to reconvene the review medical board and conduct the medical examination of the petitioner in accordance with the guidelines and if the petitioner is found fit in the re-examination then he should be appointed to the post of the constable without any further delay. [Narinder Singh v. DG of CRPF,2018 SCC OnLine J&K 398, dated on 10-07-2018]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has approved the signing of a Memorandum of Understanding (MoU) between Union Public Service Commission (UPSC) and Public Service Commission of Mauritius. The MoU will strengthen the existing relationship between UPSC and Public Service Commission of Mauritius. It will facilitate sharing of experience and expertise of both the parties in the area of recruitment. The MoU will develop institutionalized linkage between the Public Service Commissions of two countries. It defines the scope of cooperation between the PSC, Mauritius and the UPSC and sets out the areas of cooperation and obligations of the parties.

The areas of co-operation include the following

  • exchange of experience on modern approach to public service recruitment and selection, particularly the functions of the UPSC and the PSC;
  • exchange of information and expertise including books, manuals and other documents which are not of a confidential nature;
  • sharing of expertise in the use of Information Technology (IT) in the preparation of written examinations and holding of computer based recruitment tests and online examinations;
  • sharing of experience in single window system for expeditious scrutiny and speedy disposal of applications;
  • sharing of experience and expertise on the various processes involved in the examination system which are routine in nature;
  • organizing training sessions for officials, including through short attachments to the parties secretariat/headquarters on air matters concerned by the respective mandate of the parties.
  • sharing of experience on the modalities adopted on audit of processes and procedures followed by various Government Agencies in recruitment of posts under the delegated powers.

Background:

In the past, UPSC had signed MoU with Public Service Commission of Canada and Bhutan. The MoU with Canada was in existence during 15-03-2011 to 14-03-2014. The MoU with the Royal Civil Service Commission (RCSC), Bhutan was signed by UPSC on 10-11-2005 for a period of 3 years. It was renewed on 09-09-2011 for a period of 3 years which expired by 08-09-2014. In pursuance of these MoUs, UPSC had conducted attachments and training programmes for the officers of RCSC, Bhutan.  Recently, an MoU was signed between UPSC and RCSC, Bhutan for the 3rd time on 29-05-2017 valid for a period of 3 years.

[Press Release no. 1523088]

Ministry of Personnel, Public Grievances & Pensions

Case BriefsHigh Courts

High Court of Jammu and Kashmir: A Division Bench comprising of Ramalingam Sudhakar, J. and M.K. Hanjura, J. recently addressed a petition which challenged an order dated 9.12.2016 wherein, the appellants (petitioners) had been directed to accord the benefit of notional seniority to the respondents with effect from the time when the other candidates who had been granted with seniority along with directing the appellants to fix the pay and the benefits of the respondents accordingly.

The facts of the case are that an advertisement notice had been issued by the Jammu and Kashmir Service Selection Recruitment Board for the post of teachers in the district of Jammu following which the respondents had submitted their application forms. The respondents were either graduates or post graduates and all of them possessed B.Ed degrees. The appellants had prescribed 50% weightage to the candidates’ 12th standard exam. Despite the respondents being comparatively more meritorious in that aspect, they had not been selected for the posts in question.

Aggrieved by the lower court’s decision upholding the appellants’ decision of not awarding the posts to the respondents, the latter had filed a Letters Patent Appeal wherein the criterion for the selection process was held to be unreasonable. This was followed by the J&K Service Selection Board reframing the criteria which was followed by the Board reevaluating the merit of all those who had filed the case in the first place and the respondents being appointed by the department. The respondents subsequently requested the court to issue a writ of mandamus to the petitioners commanding them to give effect to the respondents’ appointments from the year when the other selectees were appointed and that all such people be given benefits of the post from that very year itself.

A Single Judge Bench responded to the writ petition by disposing it off with directions to accord the respondents with notional seniority from the initial year of selection of the appointees resulting from the advertisement along with the benefits accruing out of the positions. The Division Bench upheld the decision of the Single Judge which only responded to a single individual’s writ petition for her recruitment in the disputed position. The Division Bench held that this decision needed to be upheld for others aggrieved by the initial decision of the Board which denied them their rightful position. The Court held that the law is that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme of public employment, when the appointment is in terms of the relevant rules and after a proper competition among qualified persons, there can be no discrimination between the appointees on the same set of facts. [State v. Sushma Sharma,  2017 SCC OnLine J&K 732, order dated 7.12.2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The Commission recently addressed an application under the Right to Information Act before the Central Public Information Officer of the Central Reserve Police Force (CRPF), Ranchi seeking information pertaining to Special Recruitment in CRPF in 2013 including (i) the list of all the Scheduled Tribe (ST) candidates who appeared in the medical test and (ii) copies of the result of medical test of all the ST candidates.

The appellant filed a second appeal before the Commission on the grounds that the information sought had been incorrectly denied on the basis that CRPF has been exempted from the provisions of the RTI as per Section 24(1) of the RTI Act, 2005.

The respondent submitted that the CRPF has been declared an exempt organization under Section 24(1) read with 2nd Schedule to the RTI Act, 2005 and that the information sought by the appellant did not pertain to allegations of corruption and human rights violations which is why the provisions of the RTI Act would not be applicable in this matter.

The Commission acknowledged that although in this case information had been sought from an organization to which the RTI Act does not apply as per Section 24(1) of the RTI Act, the information sought related to the recruitment of ST candidates, disclosure of which would enhance transparency and credibility of the respondent organization. But it was quick to note that since Point 2 of the RTI application pertains to the Medical Examination Report of the candidates, which is a third party personal information, the same couldn’t be provided to the appellant. Hence, the Commission held that information about the number of ST candidates that had appeared for the examination, the final number of selected ST candidates, the cut-off marks for those belonging to this category, marks obtained by the appellant would have to be provided to the appellant. [Sagar Munda v. Central Public Information Officer, CRPF; Decision No. CIC/SB/A/2016/001248, decided on 16.08.2017]