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2017 DIGILAW 1229 (HP)

P. C. Sharma v. Central Administrative Tribunal

2017-11-06

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. Brief facts necessary for adjudication of the present case are as under:- On 19.7.2006 respondent-department had notified two posts of Assistant Administrative Officers (AAO) which were to be filled up through Limited Departmental Competitive Examination (LDCE). Examination consisting of two parts, i.e. (a) written examination consisting of five papers comprising 100 marks each and (b) evaluation of service records comprising 150 marks. Petitioner who was serving with the respondent-department as an Assistant Administrative Officer at the relevant time, being eligible to participate in the LDCE (supra), applied for the post in issue. As per the petitioner vide circular dated 27.6.2001 though qualifying marks stood provided for all the subjects, however, aggregate qualifying marks were not contemplated in the same. Result of the examination was declared on 23.11.2006. Despite the fact that petitioner had secured more than 33% marks in each of the paper, he was not declared as a successful candidate as in the interregnum respondent-department had imposed a condition of 40% aggregate qualifying marks to be obtained by a candidate. Feeling aggrieved, petitioner filed an original application, before learned Central Administrative Tribunal, praying for the following reliefs:- (i) That the impugned order dated 23.11.2006 (Annexure A-1) be quashed being illegal and contrary to the circular dated 27.6.2001 (Annexure A-2) and further to promote the applicant along with all consequential benefits @ 18% p.a. w.e.f. the date of declaration of the result as per the rules governing the conditions of service of the applicant and also to quash the circular dated 25.11.2006 (Annexure A-5) in respect of one post for which the applicant is entitled to be considered, and thereafter, selected and appointed. (ii) That the process of selection and appointment circulated vide order dated 25.11.2006 (Annexure A-5) be stayed during the pendency of the present application. (iii) That any other relief deemed feet and proper may kindly be granted to the applicant. (iv) That the cost of O.A. may kindly be awarded in favour of the applicant. 2. Respondent-department while opposing the said original application submitted in its reply that the scheme and syllabus for the LDCE for the post of Section Officer/AAO which was circulated by Indian Council of Agricultural Research on 27.6.2001 was partially modified on 20th October, 2005. (iv) That the cost of O.A. may kindly be awarded in favour of the applicant. 2. Respondent-department while opposing the said original application submitted in its reply that the scheme and syllabus for the LDCE for the post of Section Officer/AAO which was circulated by Indian Council of Agricultural Research on 27.6.2001 was partially modified on 20th October, 2005. It was further mentioned in the reply that applications for conducting the limited departmental competitive examination for the post of AAO were invited, vide circular dated 19.7.2006. Thereafter Director, CPRI on 27.7.2006 keeping in view the higher duties and responsibilities for the post in issue fixed the criteria of minimum qualifying marks in each paper, i.e. 33% and aggregate in written examination as 40%. It was further mentioned in the reply that written examination for the post of AAO was held from 16th to 19th October, 2006 at CPRI, Shimla and the criteria was duly announced in the examination hall at the time of examination. It also stands mentioned in the reply that before the examination, Director announced the same in the examination hall. This categorically finds mention in reply to para 4 sub-para (vi) of reply filed by respondent-department to the original application on merits. 3. Rejoinder filed by the present petitioner before the learned Tribunal to the said para of the reply reads as under:- “(vi) That the contents of sub-para No. (vi) of the original application and the submissions made above are reiterated and that of the written statement is denied.” Incidentally in rejoinder filed to the preliminary submissions it stood denied by the original applicant that the criteria were announced in the examination hall. 4. Learned tribunal vide its order dated 17th October, 2007 dismissed the original application so filed by the present petitioner. While dismissing the original application, it was held by learned tribunal that it was not disputed that no candidate was selected pursuant to LDCE test held in October, 2006 and thereafter the Institute held another LDCE test in January, 2007 in which the applicant did not apply. Learned tribunal also took note of the fact that in the said process two persons qualified, one of whom had joined whereas the other has expressed his inability to join the post and the vacant post was under process of being filled up. Learned tribunal also took note of the fact that in the said process two persons qualified, one of whom had joined whereas the other has expressed his inability to join the post and the vacant post was under process of being filled up. Learned tribunal also held that provisions of the circular dated 27.6.2001 issued by ICAR provided that the Agricultural Scientists Recruitment Board/ICAR had the discretion to fix qualifying marks in any or all the subjects of the examination. It further held that the office of Director had fixed the criteria of minimum 33% marks in each paper and 40% in aggregate on 27.7.2006, i.e. much prior to the date of examination and it also took note from the stand of the respondent-department that the criteria was also announced at the time of holding the LDCE test. Learned tribunal also held that as the Director was having the power to fix the said criteria, the Court could not interfere with the same unless it was demonstrated that the act was arbitrary or against statutory rules which the applicant had failed to prove. Learned tribunal also held that if the applicant was not satisfied with the criteria, he ought to have challenged the same or he should have appeared in the written examination under protest which he could not to do so. Learned tribunal further held that even otherwise the entire selection process at this stage could not be unsettled keeping in view the fact that in the first examination no one had qualified and in subsequent examination those who had qualified had already joined on promotional posts, who were not party-respondents before the learned tribunal. 5. Thereafter, in para 14 of the order, learned tribunal observed as under:- “We were, however, informed that the respondents are going to hold another LDCE for one post of AAO and the applicant requested that he may be allowed to appear in the same. In our opinion, there should be no objection in acceding to this prayer of the applicant. Accordingly, it is directed that in case the applicant applies now for the LDCE to be held, respondent No. 2 shall entertain his application while condoning the delay, if any, and allow him to appear in the examination for the post of AAO.” Original Application was accordingly disposed of in the above terms. 6. Accordingly, it is directed that in case the applicant applies now for the LDCE to be held, respondent No. 2 shall entertain his application while condoning the delay, if any, and allow him to appear in the examination for the post of AAO.” Original Application was accordingly disposed of in the above terms. 6. The order so passed by learned tribunal stands assailed by way of this writ petition primarily on the ground that the order passed by learned tribunal is not sustainable in the eyes of law as the learned tribunal erred in not appreciating that once the process of appointment had been put into motion by the respondent-department vide circular dated 19.7.2006, thereafter respondent-department could not have changed the rule of the game. 7. No other point was urged. 8. We have heard learned counsel for the parties and have also gone through the records of the case as well as the order under dispute. 9. In our considered view there is no infirmity with the order under challenge. It is not in dispute that the circular vide which applications were invited for conducting limited departmental examination were issued on 19.7.2006. It is also not in dispute that the criteria of aggregate of 40% marks in addition to 33% minimum marks in each paper came into existence on 27.7.2006. It is also not in dispute that the examinations were held from 16th to 19th October, 2006. It is further not in dispute that not even a single candidate got selected pursuant to the said limited examination. It is also not in dispute that thereafter a fresh process was initiated by the respondent-department to fill up two posts in which the petitioner did not participate. It is further not in dispute that two candidates were successful in the subsequent process and one of them joined also but he was not arrayed as party-respondent in the original application. 10. Be that as it may, the fact of the matter remains that as on the date when the petitioner appeared in the limited competitive departmental examination, the criteria of 40% aggregate in all the subjects was in force. 10. Be that as it may, the fact of the matter remains that as on the date when the petitioner appeared in the limited competitive departmental examination, the criteria of 40% aggregate in all the subjects was in force. Now incidentally here it is not a case where after the issuance of circular inviting applications the rules of the game were changed to the effect that candidates who were eligible to apply for LDCE as per circular dated 19.7.2006 were subsequently rendered ineligible. All that was done on 27.7.2006 was that an additional criteria of securing of aggregate 40% marks was also imposed on all the candidates. This undoubtedly was within the authority of the Director, as has been held by learned tribunal which aspect could not be disputed by learned counsel for the petitioner during the course of arguments. Now here it is also not a case that this particular criteria was made applicable only on the petitioner and not on other candidates. In other words, the criteria of securing 40% additional marks was applicable across the board to all the appearing candidates. Now it is the stand of the respondent-department that the said criteria was also announced in the examination hall on the date of the examination which stands disputed by the petitioner. Whether or not the criteria was announced is a disputed as on the date when the examination was held is a disputed question of fact which cannot be gone into in the present proceedings wherein this Court is undertaking judicial review of an adjudication made by the learned tribunal. A perusal of the order under challenge demonstrates that the learned tribunal after taking into consideration the respective contentions of the parties by way of a well reasoned order concluded that there was no merit in the claim of the original applicant. Reasons that weighed with the learned tribunal have already been enumerated by us above and we are not repeating them for the sake of brevity. However, we are satisfied that the reasons so returned by learned tribunal in its order, under challenge before this Court, are duly borne out from the records of the case and are not perverse. Reasons that weighed with the learned tribunal have already been enumerated by us above and we are not repeating them for the sake of brevity. However, we are satisfied that the reasons so returned by learned tribunal in its order, under challenge before this Court, are duly borne out from the records of the case and are not perverse. We are also of the considered view that there was no illegality committed by the respondent-department as alleged by the petitioner because the criteria of securing aggregate 40% marks in addition to securing 33% marks in each paper was very much in vogue as on the date when the examination were conducted. Besides this, taking into consideration the fact that no candidate was successful in the limited competitive departmental examination so held in October, 2006 and that in the subsequent examination the petitioner did not participate and further that learned tribunal while disposing of the original application on the request of the present petitioner had directed the respondent- department to entertain the application of the present petitioner by condoning the delay in case petitioner intended to appear in the subsequent examination/for one of the post, in our considered view, the order so passed by learned tribunal neither suffers from any infirmity nor it warrants any interference. As we have already stated above, the order passed by learned tribunal is well reasoned order and the findings returned by it are duly borne out from the records of the case and the same are also duly sustainable in law. 11. Therefore, in view of the above we do not find any interference in the present writ petition, the same is accordingly dismissed, so also pending applications, if any.