Raj Vir Sharma, Member (J):
1. The applicant had filed W.P. (C) No.4651 of 2012 before the Hon’ble High Court of Delhi praying for the following relief:
'a) To issue writ/direction in the nature of certiorari nullifying the effect of rejection of the candidature of the petitioner by cadre controlling authority arbitrarily;
b) To issue writ/direction in the nature Mandamus directing Respondent No.2 to issue joining letter to the petitioner who has qualified competitive examination and interview;
c) To issue writ/direction in the nature of Mandamus directing Respondent no.2 not to fill the vacancy in a hurry to devoid of the right of the petitioner;
d) Pass such other order(s) as the Hon’ble Court deem fit and proper in the facts and circumstances of the case.'
2. As the matter relates to employment with the Union of India, the Hon’ble High Court of Delhi transferred the writ petition to the Principal Bench of the Tribunal, vide order dated 26.7.2013. The writ petition on being received on transfer from the Hon’ble Court was registered by the Principal Bench of the Tribunal as T.A.No.53 of 2013.
3. Brief facts of the applicant’s case are that in response to the recruitment notice issued by respondent no.2, as published in the Employment News 26 June - 2 July 2010 (Annexure P-1), for filling up of one post of Pharmacist and other categories of posts mentioned therein, he made application for the post of Pharmacist within the stipulated date. He was issued with admission card (Annexure P-2) to appear at the examination on 15.3.2011. He appeared at the examination held on 15.3.2011. Respondent no.2, vide his letter dated 11.5.2011 (Annexure P-3), informed the applicant that he was provisionally selected against the post of Pharmacist. By the said letter, the applicant was called upon to report to respondent no.2, along with certain original documents and photocopies thereof on 23.5.2011. Accordingly, the applicant appeared with the requisite documents. On 1.6.2011 his medical examination was conducted at Ram Manohar Lohia Hospital, and fitness certificate was issued in his favour. During the last week of June 2011 police enquiry was conducted. His second medical examination was conducted as per Schedule III, Rule 3(2) of Medical Report of Fitness of Civilian in Defence Services (Field Services) Liability)-1957. As there was delay in issuance of offer of appointment, the applicant wrote letters dated 12.3.2012 and 25.4.2012 to respondent no.2 for finalization of his appointment to the post of Pharmacist. In response to his letter dated 12.3.2012, respondent No.2, vide his letter dated 30.4.2012 (Annexure P-6), informed the applicant that his selection for the post of Pharmacist was cancelled as the cadre controlling authority did not approve his candidature. With reference to the applicant’s letters dated 12.3.2012, 25.4.2012 and 9.5.2012, respondent no.2 informed the applicant that as per the procedure in vogue, his medical examination, verification of character antecedents and documents, etc., were done by respondent no.2; that on completion of the said process, his case was forwarded to the cadre controlling authority for approval along with the original certificates; and that the cadre controlling authority did not approve his candidature. On the application made by the applicant on 30.5.2012 under the Right to Information Act, 2005, respondent no.2, vide his letter dated 21.6.2012 (Annexure P-11), furnished to the applicant certain information including details of candidates and marks scored by them in a tabular form. By the said letter, the applicant was also informed that the merit list on the basis of which the applicant was shown as no.1 was incorrect, and that subsequently a correct merit list was drawn up on the basis of total marks scored by the candidates, in which Shri Mohan Kumar Sharma was placed at sl.no.1. As a result, the provisional selection of the applicant was cancelled. It is contended by the applicant that written test was conducted on 15.3.2011 and interview was conducted on 16.3.2011 and that there was no practical test. It is also contended by the applicant that no merit list was displayed or intimated to him and that rejection of his selection is arbitrary and irrational.
4. Opposing the O.A. the respondents have filed a counter reply wherein it is stated that the applicant was provisionally selected for the post of Pharmacist due to an incorrect interpretation of the rule position by the Board of Officers. The cadre controlling authority observed that there existed no provision to select a candidate only based on the marks scored by a candidate in the written test and that selection was to be made on overall rank assigned to a candidate on the basis of marks scored by him in theory, practical, and interview. As per the marks scored by candidates, the applicant, who scored 49 out of 100 marks, was placed at sl. no.5, whereas Shri Mohan Kumar Sharma, who scored 65 out of 100 marks, was placed at sl. no.1. In the counter reply, the merit list subsequently drawn up by the respondents is mentioned in a tabular form as follows:
It is stated by the respondents that the incorrect interpretation apparently happened when the Board of Officers arrived at the conclusion that a candidate securing highest marks in the written examination was to be selected. With reference to the letter dated 2.3.2012 containing the details of marks obtained by the candidates in a tabular form, the Directorate General of EME/EME Civ, Master General of Ordnance’s Branch, Integrated HQ of Ministry of Defence (Army), New Delhi, vide its letter dated 22.3.2012 (Annexure R/1), directed that selection has to be done on overall merit, unless there is a requirement of passing in each test separately and details of passing marks are clearly specified in the advertisement. Therefore, there is no infirmity in the decision cancelling the provisional selection of the applicant and in selecting Shri Mohan Kumar Sharma whose position was no.1 in order of merit assessed on the basis of his having scored 65 out of 100 marks in the test comprising of theory, practical, and interview. In view of this, the respondents have prayed for dismissal of the T.A.
5. Refuting the stand taken by the respondents, the applicant has filed a rejoinder reply wherein he has more or less reiterated the same averments and contentions as in the T.A.
6. The respondents have filed an additional affidavit along with copies of medical certificates/reports, the attestation form, and the police verification report in respect of Shri Mohan Kumar Sharma, who stood first in the overall merit position. The respondents have submitted that the applicant cannot be allowed to derive any benefit on account of inadvertent mistake on the part of the officials of the respondents and that the claim of the candidate who stood first in the overall merit position cannot be ignored.
7. In his reply to the respondents’ additional affidavit, the applicant has refuted the stand taken by the respondents. The applicant has also stated that the respondents have failed to produce before this Tribunal the examination papers, attendance sheet, practical test paper, and marks score sheet and therefore, the purported merit list, which is referred to by the respondents, is a concocted one.
8. We have heard the applicant in person and Shri Amit Sinha for Sh. R.N.Singh, learned counsel appearing for the respondents.
9. The applicant submitted that written test was conducted on 15.3.2011 and interview was held on 16.3.2011, in which he along with other candidates appeared and that on the basis of the marks scored by him, he was selected for appointment to the post of Pharmacist. The merit list, on the basis of which the respondents claimed that his position was no.5 and that of Shri Mohan Kumar Sharma was no.1, was never in existence and is a concocted one inasmuch as in the said purported merit list marks were shown to have been awarded to candidates in practical test although there was no practical test conducted either on 15th or on 16th March 2011. The applicant also submitted that no merit list was ever displayed or intimated to him at any time after the selection test was over, nor was any merit list intimated to him when he approached the respondent no.2 to finalize his appointment after his medical examination and police verification were over. The applicant further submitted that when on the basis of his performance in the test, the respondents admittedly issued letter informing him of his selection for the post and also got his medical examinations and police verification conducted, the rejection of his selection on the basis of the purported merit list is legally unsustainable and liable to be quashed and the respondents should be directed to issue him offer of appointment to the post of Pharmacist. In support of his submissions, the applicant placed reliance on the decision of the Hon’ble High Court of Delhli in Shiv Charan Lal Sharma vs. UOI & Ors., W.P. (C) No.3660 of 2007, decided on 6.8.2012, and the decision of the Tribunal in Sh.Ravi Kumar, etc. vs. Govt. of NCT of Delhi & others, OA No.1931 of 2005 & O.A.No.1036 of 2005, decided by common order dated 26th September 2006.
10. Per contra, the learned counsel appearing for the respondents submitted that on account of incorrect interpretation of the rule by the subordinate officials, the applicant came to be provisionally selected for the post and that in the merit list prepared on the basis of total marks scored by the candidates, the applicant’s position being no.5 and that of Shri Mohan Kumar Sharma being no.1, the said provisional selection of the applicant was cancelled. The learned counsel also submitted that provisional selection of the applicant and the subsequent actions taken by the respondent no.2 in the matter of his medical examination and verification of character antecedents by the police do not give him a right to be appointed to the post. The learned counsel further submitted that written test was conducted on 15.3.2011, practical test was conducted on 16.3.2011, and interview was held on 17.3.2011 by the Board of Officers and the candidates were awarded marks under each of the said three heads. The learned counsel also filed the proceedings of the Board of Officers along with marks score sheet. The learned counsel placed reliance on the decisions in Shakuntala Sharma vs. Govt. of NCT, 2006 (1) ATJ 39 (Full Bench); Ekta Shakti Foundation vs. Govt. of NCT of Delhi, AIR 2006 SC 2609; Ashok Kumar Sonkar vs. UOI & Ors, 2007 (3) SLR (SC) 501; Bijender Singh vs. State of Haryana & ors, 2005 (2) ATJ 94; and Shankarshan Das vs. UOI, 1991 SCC (L&S) 800. We have perused all the decisions cited by the learned counsel appearing for the respondents.
11. In the recruitment notice (Annexure P-1) there is no mention about the procedure for selection, nor is there any mention that candidate scoring highest marks in the written test has to be selected irrespective of his overall rank by putting together the marks scored by him in written test, practical test, and interview. There is also no mention in the said recruitment notice that selection has to be made only on the basis of written test and interview. The applicant has not filed a single scrap of paper before this Tribunal to substantiate his plea that there was no practical test held on 16.3.2011 and that there were only written test and interview held on 15th and 16th March 2011. From the marks score sheet enclosed to Annexure P-11 to the O.A., it transpires that out of 73 candidates called for appearing in the trade test for the post of Pharmacist, only 39 candidates including the applicant and Shri Mohan Kumar Sharma appeared and were awarded marks under three heads, i.e., Theory, Practical, and Interview. The said marks score sheet was signed by the Board of Officers. From the order dated 3.3.2011 (copy of which was filed by the learned counsel appearing for the respondents) it transpires that the Recruitment Board was required to hold written test, practical test, and interview test on 15.3.2011, 16.3.2011 and 17.3.2011 respectively. The said marks score sheet was also intimated to the applicant. As already noted, the applicant has also filed the same as enclosure to Annexure P-11 to the O.A.. In the said marks score sheet for the post of Pharmacist, the applicants name figured at sl.no.46 and that of Shri Mohan Kumar Sharma figured at sl.no.50. The applicant was shown to have been awarded 18 out of 40 marks in Theory, 20 out of 40 marks in Practical, and 11 out of 20 marks in Interview, whereas Shri Mohan Kumar Sharma was shown to have been awarded 15 out 40 marks in Theory, 35 out of 40 marks in Practical, and 15 out of 20 in Interview. Thus, the applicant was shown to have scored 49 out of 100 marks whereas Shri Mohan Kumar Sharma was shown to have scored 65 out of 100 marks. In the absence of any cutoff marks being prescribed in the notice of recruitment for a candidate to qualify in either written test, or practical test, or interview, and further in the absence of any provision that merit list of the candidates has to be prepared only on the basis of the marks scored in the written test, the provisional selection of the applicant was rightly held by the respondents to be erroneous. Accordingly, the correct merit list was drawn up by the respondents on the basis of the total marks scored by the candidates, and Shri Mohan Kumar Sharma having scored 65 out of 100 marks was placed in first position and the applicant having scored 49 out of 100 marks was placed in fifth position. On the facts and in the circumstances of the case, we are of the considered view that provisional selection of the applicant and the subsequent actions taken by the respondent no.2 in the matter of applicant’s medical examination and verification of character antecedents by the police do not give him the right to be appointed to the post. Therefore, we find no substance in any of the submissions made by the applicant.
12. One more aspect to be considered is that the applicant has not impleaded Shri Mohan Kumar Sharma, who was assigned first position in order of merit and was selected for appointment to the post of Pharmacist. The respondents have also stated in their additional affidavit that medical examination and character antecedent verification in respect of the said selected candidate Shri Sharma were over in June/July 2012. Therefore, the said Shri Sharma being a necessary party, his non-impleadment as a party-respondent in the present proceedings is fatal to the applicant’s case.
13. In Shiv Charan Lal Sharma’s case (supra), the petitioner had made application for the post of Presiding Officer, National Highways Tribunal, in response to an advertisement for filling up vacancies in the said post. The Selection Committee, headed by the Hon’ble Judge of the Supreme Court of India, recommended five candidates in the regular panel and four candidates in the reserved panel for the proposed five Tribunals. The name of the petitioner appeared as the last candidate in the reserved panel. In the note prepared by the concerned Ministry on 10.3.2005, the Ministry mentioned the names of the nine candidates, and the petitioner’s name was placed at Sl.No.6. However, in the note dated 17.3.2005 sent for ACC approval, it was specifically mentioned that applications from practicing lawyers were not called for and therefore, the appointment of the 5 persons, except the petitioner, might be approved. Accordingly, the name of the petitioner was not approved. The Hon’ble High Court found that the petitioner was eligible for the post and that when the petitioner’s name was on the select panel, there was no justifiable reason to ignore his selection and it was for the ACC, i.e., the final authority to approve or reject his selection. Accordingly, the Hon’ble High Court directed the concerned Ministry to send the name of the petitioner for ACC approval. The Hon’ble High Court also directed that if the ACC approves the same, the concerned Ministry shall issue appointment letter to the petitioner against the first available vacancy.
14. In Sh.Ravi Kumar’s case (supra), the applicants were selected and issued offers of appointment to the post of Safai Karmachari. Thereafter the said offers of appointment were withdrawn by the respondents without any ground. Their earlier Original Applications were disposed of by the Tribunal with direction to the respondents to consider their representations which had already been made by them. After the direction was issued by the Tribunal, the respondents, instead of considering the applicants’ representations, reiterated their earlier stand. In the circumstances, the Tribunal directed the respondents to exami
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ne the merit list prepared by the respondents. The Tribunal also observed that if the names of the applicants appeared in the merit list, there was no reason as to why they should not be given appointment to the post. Accordingly, the Tribunal directed the respondents to take a final decision with regard to appointment of the applicants within the period stipulated in the order. 15. The facts and circumstances of the instant case are totally different from that of Shiv Charan Lal Sharma’s case (supra) and Sh.Ravi Kumar’s case (supra). As already noted, in the present case, the provisional selection of the applicant was made erroneously. The reasons for cancellation of his provisional selection have been assigned by the respondents with contemporaneous documentary evidence. We also find that there is no infirmity in the decision taken by the respondents in cancelling the applicant’s provisional selection and in selecting Shri Mohan Kumar Sharma who was placed in 1st position in overall merit by scoring 65 out of 100 marks. The cadre controlling authority, after considering the overall ranks of the applicant as well as Shri Mohan Kumar Sharma, rejected the applicant’s provisional selection. The applicant cannot be allowed to take advantage of an erroneous decision of the respondents, nor can he be said to have a right to be appointed to the post in preference over the candidate who scored the highest marks in the trade test among all the candidates and was duly selected by the respondents for the post. In view of all this, the decisions in Shiv Charan Lal Sharma’s case (supra) and Sh.Ravi Kumar’s case (supra) do not come to the aid of the applicant. 16. In the light of the above discussions, we hold that the Original Application being devoid of merit is liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.