Union Public Service Commission v. Gyan Prakash Srivastava

1. Whether reporters of the local papers be allowed to see the judgment? YES

2. To be referred to the Reporter or not? NO

NO DIPAK MISRA, CJ Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner – Union Public Service Commission (UPSC) has called in question the legal propriety of the order dated 11.3.2011 2011:DHC:2744-DB passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short „the tribunal‟) in O.A. No.2656/2010.

2. The facts which are essential to be stated are that the respondent applied for the post of Legal Advisor-cum-Standing Counsel in the Land and Building Department, Govt. of NCT of Delhi but he was not called for interview scheduled to be held on 23.8.2010. Being dissatisfied with the said action of the UPSC, he knocked at the doors of the tribunal seeking a direction to the petitioner to call the respondent for interview. The tribunal by its order dated 13.8.2010, while issuing notice, passed an interim direction that the respondent should be interviewed on 23.8.2010 provisionally, subject to the outcome of the original application.

3. The tribunal subsequently enquired from the UPSC with regard to the performance of the respondent and found that he had stood first in the interview and thereafter proceeded to delve into the merits whether the respondent should have been called for the interview or not.

4. It is noteworthy that the respondent was enrolled as an Advocate with the Bar Council of Uttar Pradesh in September, 1980 after passing the Bachelor of Law degree from University of Allahabad for the examination of

1979. Thereafter, he practised as an Advocate in the High Court of Allahabad from September 1986. As is evident from the order, he worked as Assistant (Legal) in the Ministry of Law & Justice till 26.2.1991. Thereafter, he held many posts, namely, for which Bachelor of Law degree and experience was imperative.

5. The UPSC, as the factual matrix uncurtains, advertised and invited applications for the post of Legal Advisor-cum-Standing Counsel vide advertisement No.11 in the Employment News dated 13 – 19 September,

2009. The requisite qualification for the said post was degree in law from a recognized University / institution and experience of 12 years as an Advocate, or as member of a State Judicial Service or equivalent service in the legal departments of Central / State Governments/ UTCS. The respondent submitted his application on 30.6.2009 making a declaration that he was having the essential educational qualification and requisite experience. He enclosed a statement in form of Annexure-A giving details of his educational qualification in a statement format where the year of passing, and name of the institution/University from where the qualification was acquired were mentioned. Despite compliance of every aspect, he was not informed and called for interview by the UPSC. He submitted a representation and eventually approached the tribunal.

6. The stand of the UPSC before the tribunal was that the applicant/respondent was not short-listed as his application was rejected as an „incomplete applications‟ for failure to furnish the law degree certificate along with the application. Before the tribunal, the UPSC relied on the decisions of this Court in Dr. Vineet Ralhan v. UPSC [WP(C)No.13451/2009] decided on 13.1.2010 and UPSC & ors. v. Govt. of NCT of Delhi & ors. [W.P.(C) No.10058/2009] decided on 25.1.2010.

7. The tribunal referred to Column 7 of the advertisement and referred to the form of the respondent herein and came to hold that when the respondent had attached the enrollment certificate and had been selected for various posts from time to time by the UPSC for which essential educational qualification was a degree of law. The respondent had submitted that his case would be covered by the decisions rendered in Charles K. Skaria v. Dr.

8. The tribunal further proceeded to distinguish the said decisions holding that in other cases the Court had emphasized that what was required to be attached was a valid LLB degree certificate and nothing more or less, but the facts in the present case are different. In this regard, we may profitably reproduce the finding recorded by the tribunal which are as follows: “In the present case, it is not that the candidates were required to attach LLB degree certificate, nothing more or less. As mentioned above, it was permissible for them to either attach the LLB degree certificate or other certificates in support of their educational qualifications. We may again mention that in the case before the Hon‟ble High Court when the requirement was not strictly to only produce the LLB degree certificate, and the requirement was similar to the one as in the case in hand, at the first stage where candidates could either produce the LLB degree certificate or other certificates in support of their educational qualifications, they were allowed to appear in the recruitment test. In the same very judgment, some of the writ petitions arising from the common judgment were dismissed, wherein the rejection of the candidature was only on the ground that the concerned candidates had not produced a certificate stating that they had three years experience at the Bar. Inasmuch as, such was not the requirement in the DAF, it became a conceded position before the High Court that it was not a valid ground for rejection of their candidature. Actually, it is this part of the judgment of the Hon‟ble High Court which would be akin to the facts of the present case. On the basis of distinction on material facts, as enumerated above, which may have entirely different result, there would be no need to refer to other facts that may be distinguishable. However, we may mention that in the case before the High Court, in response to the advertisement 3011 applications were received, which would be roughly 90 applications per post. Out of these applicants, 2765 were admitted for written examination for which 1885 actually appeared. The total number of candidates who qualified for interview was 134. In the facts and circumstances as mentioned above, it was held, “With such a large number of DAFs having been received by the UPSC, it is impracticable to expect the UPSC to give a go by to the instructions that have categorically and specifically been mentioned in the advertisements issued by it”. Such is not the position in the present case. As mentioned above, against one post, 187 applications were received, and after applying the criteria of short-listing, only 11 were shortlisted. Before we may part with the judgment passed by the Hon‟ble High Court, we may mention that the applicants had sought to defend the orders passed by the Tribunal on the basis of judgment of the Hon‟ble Supreme Court in Charles K. Skaria (supra), but the same was distinguished on facts by observing that the facts of the case before the Supreme Court were such where the controversy was only with respect to three seats and six candidates, whereas in the case before the High Court the large number of contenders in the “musical chair scenario” would run into a couple of thousands. The judgment of the Apex Court has been distinguished on facts. However, it would be relevant to mention as to the law laid down by the Supreme Court on the issue.” [Underlining is ours]

9. After so stating, the tribunal placed reliance on decisions rendered in Charles K. Skaria (supra) and Dolly Chhanda (supra) and eventually opined as follows: “The applicant, in addition to attaching the certificate issued by the Bar Council of his enrolment as an advocate, had attached voluminous record which would unmistakably show even to a man of ordinary prudence that he must have obtained degree of law. In this connection, we may only mention that the claim of the applicant that he has been working on different posts which all essentially require degree of law, has been substantially proved by placing necessary documents on record, mention whereof has been made hereinbefore. We are of the considered view that a great deal of injustice would be caused to the applicant if despite his impressive service credentials and number of posts held by him for which he was selected by UPSC only, and on the basis of his essential degree of law and when he has stood first, that he should be denied the well earned appointed on the post of Legal Advisor-cum-Standing Counsel. The candidature of the applicant was rejected in the category of those who had not attached the requisite certificates. No effort was made thus as to whether he answered the eligibility as per the criteria adopted for short-listing. It is, however, not the case of the respondent that the applicant could not be short-listed as per such criteria. The impressive array of the facts as given by the applicant, it appears to us, would bring him within the criteria for short-listing. However, we express no opinion on this issue.” [Emphasis supplied]

10. Being of this view, the tribunal directed that the candidature of the applicant/respondent is valid, and if he answers the criteria for short-listing, UPSC should consider him for appointment on the post aforesaid.