JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Union of India, through Secretary, Ministry of Finance, Department of Revenue, Central Excise, Customs and Service Tax, New Delhi, and its officials, as well as Ms. Suman Devi Inspector, Central Excise, Customs and Service Tax have approached this Court, challenging the judgment passed by the Central Administrative Tribunal, Allahabad Bench in Original Application No. 741 of 2006 dated 17.9.2008. The Tribunal, by its judgment has quashed the order dated 10.4.2006, selecting Ms. Suman Devi as Inspector, Central Excise, under the sports quota and thereafter has directed the respondents to offer appointment to the candidate on the basis of merit, in the suitability test, as per the table shown in paragraph No. 13 of the judgment of the Tribunal. The Tribunal has further directed that so long as the candidate selected as per its order, does not join the post, Ms. Suman Devi would be allowed to continue. 2. While entertaining the present petition, an interim protection against the order of the Tribunal was granted, which has continued to remain in operation. 3. We have heard Sri B.K. Singh Raghuvanshhi, learned counsel appearing for the Union of India and its officials, Sri Keshari Nath Tripathi, learned Senior Advocate, assisted by Sri N.K. Chaturvedi, for Ms.Suman Devi and Sri Rakesh Pandey, Advocate appearing for the applicant/contesting Opp. Party, Gyan Prakash. 4. Office of Chief Commissioner, Central Excise and Services published an advertisement dated 21.12.2005 in daily news paper ‘ Dainik Jagran’, inviting applications under the Sports Quota for appointment to the post of Inspector Central Excise. Distinguished sports persons from the field of Lawn Tennis/Athletics were permitted to apply, who possess a graduation degree or equivalent and fulfill the other qualifications prescribed therein. The advertisement prescribed the physical characteristics required by the candidate as well as the field requirements. The advertisement further provided the nature of sports attainment which could enable a person to apply. The authorities, whose certificates were to be recognised were also specified. The candidates whose applications were found valid, were then required to appear in written test in the subjects of English, General Knowledge and Math and those who qualified the written test would then have to face interview. It was also stated that only those promising sportsman would be preferred, whose sports credentials for the last two years was of extremely high order. It was also stated that only those promising sportsman would be preferred, whose sports credentials for the last two years was of extremely high order. Pursuant to the advertisement, application of 11 persons were entertained. These 11 persons were subjected to field test, written test and interview. The department selected Ms. Suman Devi as the best candidate and issued appointment order to her. Aggrieved by the selection, Sri Gyan Praksh Singh approached the Tribunal by filing O.A. No. 741 of 2006. 5. Before the Tribunal reply was filed by the department and the selected candidate, where after the Original Application has been allowed. The tribunal has referred to relevant circulars dated 4.8.1980, 9.3.1987, 12.11.1987, 30.9.1988 and 4.5.1995, issued by the department in respect of appointment to be made under sports quota. 6. The Tribunal was of the view that the selection process was essentially in two parts; firstly, the eligibility test to assess the candidates eligibility in terms of sports proficiency as per levels of participation and current form as per field tests and; secondly, suitability test to assess the candidate’s suitability for the post applied for, on the basis of written test and interview. The tribunal found that the marks secured by Gyan Prakash Singh in written test and interview, was higher than the marks secured in the same category by the selected candidate Ms. Suman Devi. The further view taken was that the marks scored by a candidate in the field test since related to eligibility only, as such, it was not liable to be counted for determining merit in selection. 7. It is admitted to the parties that the selected candidate Ms. Suman Devi had an outstanding record in the field of Athletics, inasmuch as she secured first place in Javelin Throw in the 45th National Inter-State Senior Atheletics Championship, 2005, first place in 11th Federation Cup National Senior Athletics Championship, 2005, secured second position in 10th Asian Junior Athletic Championship, 2002, represented India in 9th SAF Games, 2004 and also represented India in 16th Asian Athletics Championship, 2005, whereas Gyan Prakash Singh only had certificate of Inter University Level for the year 1991-1992 and 1992-1993. 8. 8. The judgment of the Tribunal has been challenged on the ground that the primary consideration for selection was to promote and incentivise sports in the department and, therefore, extent of attainment in the filed of sports was the primary consideration for selection whereas the Tribunal by treating it to be merely a eligibility criteria, ignored the extent of attainment and thereby the respective merit in the field of sport has been given a complete go-by. It was further contended that the written test and interview were merely qualifying in nature and Tribunal misconstrued the advertisement and departmental circulars to hold it as suitability test and thereafter to award appointment solely based on it, completely ignoring the sports achievement, which was held to be in the realm of eligibility alone. It was also submitted that relevant departmental circulars issued were completely misconstrued by the Tribunal. Per contra, it was contended that the tribunal’s view is absolutely correct and the sports attainment mentioned in the advertisement and also in the circulars were only to specify eligibility and thus no preference was indicated clearly suggesting that it was to define eligibility only. 9. We have considered the respective submissions of the learned counsel for the parties and perused the records. 10. On 31.12.2005 an advertisement was published by the department inviting applications for appointment to the post of Inspector under the sports quota. The advertisement prescribed the post, number of vacancies, scale of pay, eligibility, age etc. alongwith physical characteristics and fill requirement of the candidates. The achievements in the field of sports as well as sports authority from which such certificates were accepted, were also specified. The advertisement thereafter provided that the applications thereafter were to be screened and those candidates, who fulfill eligibility criteria were required to appear in a written examination in the english, general knowledge and maths and upon qualifying it would have to face the interview. Preference was to be accorded to the sportsman, whose performance in the field of sports during last two years was of extremely highest. 11. Admittedly, recruitment in the sports quota was required to be undertaken in accordance with departmental circulars. Relevant circulars have been brought on record or have been interpreted by the Tribunal. In order to adjudicate the issue involved, it would be necessary to notice the departmental circulars, issued from time to time. 11. Admittedly, recruitment in the sports quota was required to be undertaken in accordance with departmental circulars. Relevant circulars have been brought on record or have been interpreted by the Tribunal. In order to adjudicate the issue involved, it would be necessary to notice the departmental circulars, issued from time to time. The first circular dated 4.8.1980, provided for eligibility of candidates in the sports quota and required level of attainment in the field of sports, was outlined. It provided that no appointment can be made, unless the candidates, in all respects, is eligible to be appointed for the post applied for and fulfills all criteria of age, qualification, experience etc. as prescribed under the relevant recruitment rules. The subsequent circular dated 9.3.1987 noticed that exact procedure to be followed for making such recruitment was not laid down in the scheme introduced vide circular dated 4.8.1980 and thus, required that the various sports/games should first be identified and applications from eligible candidates be called by advertising the post as per normal practice, by keeping the eligibility criteria in conformity with the provisions of recruitment rules, the instructions issued by the Board and Directorate of Personnel and Training on the subject. Clause (iv) & (v) of the circular dated 9.3.1987 are reproduced hereinafter : “(iv) While determining the proficiency in sports; the levels at which the candidates have participated in the respective disciplines and their current form should also be taken into account. For this purpose, they should also be subjected to practical/field test to be conducted by an expert in the respective discipline. Having regard to the requirements of the Collectorates and the proficiency of the candidates in their respective sports disciplines; a list of candidates in the order of their ranking should be drawn up; (v) All the listed candidates should be subjected to a written test which should be a purely qualifying one. The pattern for the written test should be on the lines of the recruitment test conducted by the Staff Selection Commission for identical posts. A panel, after omitting the names of candidates who fail in the recruitment test, should be drawn up and appointments made accordingly.” The next circular of the Board dated 12.11.1987 provided for relaxation of upper age limit for meritorious candidates and thereby modified the circular dated 4.8.1980. A panel, after omitting the names of candidates who fail in the recruitment test, should be drawn up and appointments made accordingly.” The next circular of the Board dated 12.11.1987 provided for relaxation of upper age limit for meritorious candidates and thereby modified the circular dated 4.8.1980. The circular dated 30.9.1988 clarified that holding interview in case of recruitment for the post of Inspector was necessary. The circular of 21.3.1991 specified the various sports/games for consideration for appointment under the post. Last circular of the Board dated 4.5.1995 modified the first circular of 4.8.1980 and provided as under in clause (2) thereof. “2. In order to facilitate proper selection of sports persons, it has been decided that sports persons who fulfil the eligibility conditions laid down in para 1 of this Department O.M. dated 4.8.80 referred to above shall be considered in the following order of preference : (a) First preference to those candidates who have represented the country in an International Competition with the clearance of the Department of Youth Affairs & Sports. (b) Next preference may be given to those who have represented a State/U.T. in the Senior or Junior level National Championships organized by the National Sports Federations recognized by Deptt. Of Your Affairs & Sports or National Games organized by Indian Olympics Association and have won medals or positions upto 3rd place. Between the candidates participating in Senior and Junior National Championships/games, the candidates having participated and won medal in Senior National Championship should be given preference. (c) Next preference may be given to those who have represented a University in an Inter-University competition conducted by Association of Indian Universities/Inter University Sports Board and have won medals or positions upto 3rd place in finals. (d) Next preference may be given to those who have represented the State Schools in the National sports/games for schools conducted by the All India School Games Federation and have won medals or position upto 3rd place. (e) Next preference may be given to those, who have been awarded National Award in physical efficiency under national Physical Efficiency Drive. (f) Next preference may be given to those, who represented a State /Union Territory/University/State School at the level mentioned in categories (b) to (d) but could not win a medal or position, in the same order of preference. Note 1. (f) Next preference may be given to those, who represented a State /Union Territory/University/State School at the level mentioned in categories (b) to (d) but could not win a medal or position, in the same order of preference. Note 1. In the event of tie those who have secured a higher position or won more than one medal may be given the preference. Note 2. Participation in individual and team event/item may be given the same preference. Note 3. No preference may be given for winning more than one Medal/position. Note 4. In case of any doubt about the status of a tournament, the matter will be decided by the Deptt. of Pers & Trg. In consultation with Deptt. of Sports & Youth Affairs.” 12. From the perusal of the advertisement as well as the circular of the department, as modified from time to time, it is abundantly clear that consideration of candidature of the candidates, who fulfill the eligibility condition has to be in the order of preference, as outlined in the circular dated 4.5.1995. Accordingly, first preference is to be given to those candidates, who represented the country in an international competition with clearance of Department of Sports and Youth Affairs. Next preference is to be given to those, who represented a State/Union Territory in the Senior and Junior level National Championships, followed with preference to those, who represented a University in an Inter-University competition, and thereafter, to those, who represented the State schools in the National sports/games for schools. Lastly, preference is to be given to those, who were awarded National Award in physical efficiency under National Physical Efficiency Drive and to those, who represented a State/Union Territory/University/State Schools at the level mentioned in categories (b) to (d) but could not win a medal or position, in the same order of preference. It is equally clear from the advertisement and also the circular dated 9.3.1987 that written test was to be purely a qualifying one. 13. It is, therefore, apparent that the objective of making recruitment in the sports quota was to incentivise sports in the department and selection was to be made considering the extent/level of sports achievement of the candidate, who possessed eligibility for recruitment and had qualified the written test. 14. 13. It is, therefore, apparent that the objective of making recruitment in the sports quota was to incentivise sports in the department and selection was to be made considering the extent/level of sports achievement of the candidate, who possessed eligibility for recruitment and had qualified the written test. 14. The tribunal, while referring to the advertisement and circulars, came to the conclusion that the recruitment was to be conducted in two parts consisting of eligibility test and suitability test. The eligibility test included sports proficiency and level of participation, current form etc. as per field test, whereas suitability test was to assess the candidate’s suitability for the post applied according to the written test and subsequent interview. The proficiency/attainment of excellence became irrelevant if the candidate possessed any of the sports achievement and the criteria for selection/merit was the performance in written test and interview. 15. The tribunal, while coming to the aforesaid conclusion, has completely misconstrued the relevant circulars dated 9.3.1987 and 4.5.1995, which held that written test was to be purely a qualifying one and preference was to be accorded to the respective attainment in the fields of sports i.e. levels of achievement and current form. The conclusion of the tribunal that sports proficiency as per levels of participation, and current form as per field test were also to test the eligibility and not to constitute preference, had the effect of virtually negating circulars dated 9.3.1987 and 4.5.1995. In case, the proficiency as per levels of participation, current form as per field test, is merely to test the eligibility, then in that situation preference contemplated in circular dated 4.5.1995 on the basis of sports attainment is rendered nugatory. Similarly, if the written test and interview is held to determine the suitability then the conditions in the advertisement as well as the aforesaid circulars stating such test to be of qualifying in nature looses significance. Thus, the direction of the tribunal to exclude the marks obtained in the field test and to select the candidates only on the basis of marks obtained in the written test and interview is clearly in teeth of the departmental circular and advertisement itself. 16. From the materials brought on record before the tribunal, it seems that the department had for selecting the candidate taken note of the sports attainment, current level of performance etc. 16. From the materials brought on record before the tribunal, it seems that the department had for selecting the candidate taken note of the sports attainment, current level of performance etc. on the basis of field test and treated the written test as purely of qualifying in nature. The department found that all the 11 eligible candidates, who had appeared in the written test, had qualified and after subjecting them to interview the final list was drawn, in which Suman Devi had scored highest marks of 160, whereas the applicant Gyan Prakash Singh had only scored 97 marks. It is not disputed that Suman Devi had participated at the Assian/International levels and was awarded 100 marks for the field test i.e. 50 marks for past performance and 50 marks for current performance. The applicant Gyan Prakash Singh, however, had participated only at Inter-University level for the year 1991-92, 1992-93 and 1993-94, which in the line of preference falls much below the achievement of Suman Devi. The chart showing the respective marks of the candidates, as noticed in para 13 of the judgment, is reproduced : 17. The tribunal completely misconstrued the circular of the department and clearly misdirected itself while examining the issue raised before it. Awarding of 100 marks to Suman Devi was viewed with suspicion and an observation was made that the department had pre-decided to select Suman Devi and for this purpose she was awarded 100 marks. This observation of the tribunal was wholly incorrect and was clearly an outcome of surmises. Since under the policy a candidate with international experience and was in form during the recent past, was entitled to grant of preference, as such awarding higher marks to her over and above the marks awarded to Gyan Prakash Singh who merely had participated at Inter-University level, more so many years all i.e. 1991-92, 1992-93 and 1993-94 was clearly valid and justified. Awarding of marks in field tests and its consideration for determining merit was valid and the view to the contrary taken by the tribunal is wholly unsustainable in law. The tribunal also failed to consider that similar marks were given by department to other candidate also. 18. The tribunal also took note of the fact that qualifying marks for written test had not been specified by the department. The desirability to specify the qualifying marks cannot be doubted. The tribunal also failed to consider that similar marks were given by department to other candidate also. 18. The tribunal also took note of the fact that qualifying marks for written test had not been specified by the department. The desirability to specify the qualifying marks cannot be doubted. However, it was for the department to fix the qualifying marks and in the instant case, since the department found all 11 eligible candidates to have qualified written test, not much will turn on account of non-specification of qualifying marks. Admittedly, the selected candidate Suman Devi fulfilled all conditions of eligibility by possessing the required qualification and cleared qualifying test, as such had been selected on account of her outstanding performance in the field of sports, which was relevant consideration and criteria for appointment under the sports quota. 19. The approach of the tribunal, in treating the level of sports attainment as an aspect of eligibility, has rendered the extent of proficiency in sports, totally irrelevant, inasmuch as all applicants under sports quota, irrespective of their achievement and extent of attainment in the field of sports are to be treated alike. A higher standard of attainment in the field of sports constituted a separate class distinct from those with less meritorious attainment in the field of sports. The tribunal, therefore, by treating levels of attainment in the field of sports as equal has held unequals to be equal, thereby infringing Article 14 of the Constitution of India. 20. It cannot be doubted that ability of selected candidate to discharge official duties was extremely relevant. In order to secure it, the department had already prescribed the fulfillment of eligibility criteria in terms of the recruitment rules i.e. requirement of a candidate being graduate, qualifying the written test and successfully facing the interview. In the instant case, the selected candidate possessed graduation degree and had qualified written test and also cleared the interview, which was sufficient to ensure that the selected candidate could perform the official duty expected of the post held. In the instant case, the selected candidate possessed graduation degree and had qualified written test and also cleared the interview, which was sufficient to ensure that the selected candidate could perform the official duty expected of the post held. Subject to above, it was the proficiency and extent of attainment in the field of sports, which was the relevant consideration and we are satisfied that the department had committed no error in selecting Suman Devi, who was entitled to grant of preference both for the level of her achievement in the field of sports and also for the current form held. 21. The Tribunal had clearly misconstrued and misread the departmental circular dated 9.3.1987 and 4.5.1995 and the scheme for recruitment itself, which amounted to manifest error of law. The finding of the tribunal, therefore, cannot be sustained. 22. The Apex Court in Shama Prashant Raje v. Ganpatrao and others, 2000 (7) SCC 522 , while dealing with the scope of powers of High Court under Article 226 of Constitution of India, in interfering with the findings of inferior Tribunal, has held as under in para 5 thereof : “5. —————. Undoubtedly, in a proceeding under Article 226 and 227 of the Constitution the High Court cannot sit in appeal over the finding recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal.—————” 23. In view of the discussions made above, we find that the judgment and order of the tribunal dated 17.9.2008 cannot be sustained and the same is, therefore, set aside. As the selection of Suman Devi was made in accordance with law, the challenge made to it by filing Original Application No. 741 of 2006 fails and consequently, the Original Application No. 741 of 2006, is rejected. 24. Accordingly, the writ petition is allowed. No order is passed as to costs. —————