Full Text
HIGH COURT OF DELHI
Judgement pronounced on: 23.12.2022
VIJAY KUMAR SHARMA & ORS. ......Petitioners
Through: Ms Tarannum Cheema and Mr Akash Singh, Advs. for P-1. Mr Rahul
Tyagi, Mr Hitendra Nath Rath and Mr Aashish Chojar, Advs. for P-2. Mr
Jay Kishor Singh and Mr Mohit Raj, Advs. for P-4.
Through: Mr RV Sinha with Mr A S Singh, Mr Amit Sinha and Mr Sharanya Sinha, Advs. for R-1. Mr Ajay Digpaul, CGSC with Mr Kamal R Digpaul, Adv. for R-2/UOI. Mr Saddharth
Dutta and Mr Gunjan Malhotra, Advs. for R-4.
HON'BLE MR. JUSTICE TALWANT SINGH TALWANT SINGH, J.:
JUDGMENT
1. This is an application under Section 151 C.P.C. on behalf of respondent no.2 seeking modification/clarification in para 2 of the order RANI Signing Date:23.12.2022 17:02 dated 26.07.2021 passed by this Court. 1.[1] It has been submitted that the above-mentioned writ petition was disposed of on 26.07.2021 with the direction as under:- "since the petitioners have been declared successful, the concerned respondent [i.e. Union of India] will give effect to the result as impugned judgement cannot, now, stand in their way. The net result will be that, the petitioners will stand appointed to the post of Joint Secretary and Legal Advisor in the Ministry of Law and Justice. Let the needful be done at the earliest, though not later than six weeks from the date of receipt of a copy of this order". 1.[2] It has been submitted that the issue relates to recruitment to the post of Joint Secretary & Legal Adviser (hereinafter referred to ‘JS&LA’) (Grade-1 of Indian Legal Service) in Level-14 of Pay Matrix in the Department of Legal Affairs. The applicant/respondent no.2 had sent a proposal on 08.02.2018 to UPSC for filling up of 6 posts of JS&LA through direct recruitment basis. For these 6 posts, the UPSC recommended 5 candidates and kept the result of remaining one post in a sealed cover due to pending litigation. 1.[3] It has been submitted that Rule 7(1) (a) of the Indian Legal Service Rules, 1957 (hereinafter referred to ‘ILS Rules’) regarding direct recruitment provides as under:- "A person shall not be eligible for appointment by direct recruitment to a duty post in Grade I, unless he has been a member of the Indian Civil Service permanently allotted to the judiciary or of a State Judicial Service for a period of not less than sixteen years or has held a superior post in the legal department of a State for a period of not less than sixteen years or a Central Government servant who has had experience in legal affairs for not less than sixteen years." 1.[4] The candidates with 18 years’ of experience were short-listed by UPSC and thereafter the selection was made. It is further submitted that respondent no.2/Ministry of Law and Justice has initiated steps to comply RANI with order dated 26.07.2021 in respect of 2 candidates namely Shri Ashutosh Mishra and Shri Sher Singh Dagar. The process for verifying the qualifying experience was stated to be under consideration. Respondent no.2 had sent the offers of appointment to 5 candidates for the post of JS&LA, out of which 4 candidates have given acceptance for appointment. Respondent No.2 had sought approval of ACC for appointment of the petitioner no.1 and one Ms. Sunita Anand as JS&LA. 1.[5] Respondent no.2 had written to UPSC seeking clarification regarding 2 candidates namely Shri Sher Singh Dagar and Shri Ashutosh Mishra, inquiring as to whether the UPSC had considered the total experience of Shri Sher Singh Dagar as 26 years, 3 months and 29 days as stated by him in his online application or his post-LLB qualification or experience, i.e., 15 years, 9 months and 15 days. In respect of Shri Ashutosh Mishra whose experience was mainly related to Administration and Establishment matters and where handling of litigation work has been mentioned, it can be taken as experience in Legal Affairs. 1.[6] The UPSC responded on 18.01.2021 that when the recommendation is made for the subject post, dossiers with all the documents were sent to Ministry and the veracity of certificates/documents were to be verified by the Ministry before issuing offer of appointment to the candidates. 1.[7] Moreover, the Ministry, has option to accept or not to accept the recommendation of UPSC, giving valid justification for such an action and in case of non-acceptance, the same would be included in the annual report of the Commission laid before the Parliament. On receipt of this letter, the applicant/respondent no.2 wrote to the respective departments regarding legal experience of Shri Sher Singh Dagar and Shri Ashutosh Mishra, the petitioner no.2 and 4 respectively, in the writ petition. Before accepting the RANI recommendation of UPSC, it is to be ensured that the candidates fulfil the eligibility criteria. 1.[8] It has been submitted that prima facie, the declaration made by Shri Sher Singh Dagar is not in conformity with the experience criterion since his experience post-LLB is only 15 years, 9 months and 15 days, instead of minimum experience of 16 years. This fact was yet to be verified by the employer department of Mr. Dagar as to whether he was substantially dealing in Legal Affairs for 26 years, 3 months and 29 days as claimed by him. Similarly, in respect of Shri Ashutosh Mishra, his substantive experience in Legal Affairs was to be verified from his administrative department. Reminders were sent to these respective departments. 1.[9] In view of the above, it has been prayed that the requisite modification of the order dated 26.07.2021 may be made to the extent that petitioner no.2 and 4 be appointed subject to verification of certificates/documents submitted by the recommended candidates and fulfilling the requisite criteria required for the appointment.
2. Notice was issued. The UPSC filed a short affidavit in compliance of order dated 23.02.2022. In the said short affidavit, the background of the matter, i.e., 5 candidates being recommended after being found eligible by the Commission in accordance with ILS Rules, 1957 and essential qualification and experience required by Ministry of Law & Justice along with requisition as per UPSC is mentioned. All the 5 candidates, including petitioner no.2 and 4, fulfilled the short-listing criteria and modalities adopted by the Commission. The UPSC’s recommendation letter dated 24.02.2020 was accordingly issued. 2.[1] In the said letter, it is clearly mentioned that it is the responsibility of the indenting Ministry to check the veracity of the documents furnished by RANI the selected candidates from issuing authority. The original degree/diploma/experience certificates etc. were to be verified from the issuing authority. The Commission received a letter dated 31.12.2021 seeking clarification with respect to experience of petitioner no.2 and 4 and in response thereto, the Commission sent its reply dated 18.01.2022 informing that the Commission is not bound to furnish clarifications/reasons for its decision/recommendations. The said letter is reproduced hereunder: “Subject: Direct recruitment to the 06 posts of Joint Secretary & Legal Advisers (SC-01, OBC- 02, UR-03) in the Department of Legal Affairs, Ministry of Law & Justice, Government of India-Reg. Sir, I am directed to refer to the Department of Legal Affairs, Ministry of Law and Justice' letter No. 2/1/2015-Admn.I(LA) dated 31.12.2021 on the subject mentioned above and to say that Union Public Service Commission is a Constitutional Body and carries out its responsibilities in a transparent, objective, fair and just manner. These systems and procedures have been upheld by Hon'ble Courts including the Hon'ble Apex Court.
2. The Commission is not bound to furnish clarifications/reasons for its decisions/ recommendations.
3. While recommending the candidates for the subject post, dossiers with all the documents of the recommended candidates were sent to the Ministry. The veracity of the certificates/ documents furnished by the recommended candidates were to be verified by the Ministry from the issuing authority before issuing offer of appointment to the candidates.
4. The Ministry however does, have the option to accept or not accept the Recommendation of the Commission giving valid justification for such an action. In case of non acceptance of the Recommendation of the Commission, the same would be included in the Annual Report of the Commission and laid in the Parliament as a subordinate legislation.” 2.[2] The UPSC has also enclosed copies of the offers for appointment letters dated 08.11.2021 issued to petitioner no.2 and 4 i.e. Sher Singh Dagar and Shri Ashutosh Mishra apart from other selected candidates. The acceptance in writing was called for from the selected candidates in the said offers of appointment. RANI
3. The petitioner no.2 namely Shri Ashutosh Mishra has also filed his affidavit in pursuance of order dated 25.03.2022. As per him, the application filed by respondent no.2 is not maintainable and the same has been filed just to escape from the contempt action initiated by this Court in Cont.Cas.(C)180/2022 for non-compliance and wilfully disobeying the order and direction dated 26.07.2021. 3.[1] It has been further submitted that in the guise of present application tiled as ‘application for modification and clarification”, in fact respondent no.2 is seeking review of the order dated 26.07.2021. It has been submitted that there is unexplained delay as the application was moved on 12.02.2022. The application for clarification/modification, which is in fact an application for review, is not maintainable and the same cannot be considered by this Court. 3.[2] It has been also mentioned that there is no error in order dated 26.07.2021. By way of this application, respondent no.2 is seeking to add additional conditions and eligibility criteria for the post of Joint Secretary and Legal Advisor. Petitioner no.2 claims to have qualified all the eligibility conditions for the said post as per the rules and he was declared as a successful candidate by UPSC after considering all the eligibility conditions and criteria and accordingly he was issued an offer of appointment by the applicant/respondent no.2 on 08.11.2021. 3.[3] This Court, after scrutinising and examining the eligibility conditions and criteria, had passed the order dated 26.07.2021 directing respondent no.2 to issue appointment letters. The applicant/respondent no.2 is unnecessarily delaying the appointment of the petitioners and is extending service benefits to its own employees. No doubt was expressed by the applicant/respondent no.2 regarding eligibility and suitability of the RANI petitioners when it filed its counter reply dated 06.05.2021. This is for the first time that applicant/respondent no.2 has raised doubts. 3.[4] It has been also submitted that petitioner no.2 has qualified the eligibility conditions for appointment as JS&LA. Petitioners had specifically pleaded that they were eligible and suitable for appointment to the subject post and in their counter reply dated 06.05.2021, the applicant/respondent no.2 had not raised any doubts as regards eligibility or suitability of any of the petitioners, including petitioner no.2. Doubts have been raised regarding eligibility of petitioner no.2 for the first time in a disposed of case, which were not raised in the counter reply or even in the final hearing on 26.07.2021. So, the contentions raised in the application are barred by the principle of estoppel. Once this Court has ordered for issuance of appointment letters, so the plea regarding issues of eligibility and conditions is also barred by the principle of res-judicata. 3.[5] It has been submitted that advertisement issued by UPSC mentions the following educational qualification and experience for the post of JS&LA:- "(A) EDUCATIONAL: A person shall not be eligible for appointment by direct recruitment to a duty post in Grade I, unless he holds a Degree in Law of a recognized University or equivalent and unless he has been a member of the Indian Civil Service permanently allotted to the judiciary or of a State Judicial Service for a period of not less than sixteen years or has held a superior post in the legal department of a State for a period of not less than sixteen years or a Central Government servant who has had experience in legal affairs for not less than sixteen years. ·(B) EXPERIENCE: As mentioned in A above," 3.[6] The ILS Rules also provides for direct recruitment to the subject post. The duties prescribed for the post as per advertisement also include as under: "(iv) To perform administrative and other works as may be assigned” RANI 3.[7] As per the petitioner No.2, he is eligible under the last experience criteria i.e. ‘Central government servant who has had experience in legal affairs for not less than sixteen years’. The petitioner no.2 possesses a degree in law since 1994, i.e., prior to the joining of Central government Service in 1996 and his entire experience is in Group ‘A’ and ‘B’ in Gazetted rank. 3.[8] It has been further submitted that the total legal experience of petitioner no.2 in four different government department added upto 21 years, 6 months and 3 days and as such he satisfied the experience criteria circulated by UPSC. The experience certificates issued were forwarded by UPSC along with select list of candidates to respondent no.2 on 24.02.2020. The applicant/respondent no.2 is trying to arbitrarily change the rule of the game after the game is over. The selection process is already completed; offer of appointment has already been issued on 08.11.2021 and the said offer already stands accepted on 11.11.2021. The eligibility criteria cannot be changed after the selection process is over and new criteria to test the eligibility cannot be put in place at this stage. The two eligibility criterias being now introduced by the respondent by posing queries to employer departments of petitioner no.2, as detailed below, were not there earlier. "(i) It is requested that it may be clarified whether possession of a Degree in Law was a pre-requisite for his appointment in the Government to qualify his experience as experience in legal affairs and
(ii) It may also be stated whether the substantial work allocation of the officer was related to administration or legal affairs exclusively. " 3.[9] These two conditions have been introduced without any authority under ILS Rules 1957 and Advertisement No. 06/2018. The word ‘substantive’ or ‘substantial’ or ‘exclusive’ were neither in the criteria prescribed under the ILS Rules 1957 nor in the advertisement No. 06/108 RANI nor in the requisition letter dated 08.02.2018 sent by respondent no.2 to respondent no.1/UPSC. It is further mentioned that in the letter dated 08.02.2018 sent by respondent no.2 to UPSC, the requisite experience has been mentioned as under:-
3.10 As per petitioner no.2 is that there is no mention of any entry level qualification for a Central Government servant for gaining such experience either in ILS Rules, 1957 or in the advertisement no. 06/2018 or in the requisition letter dated 08.02.2018. However, the petitioner no.2 submits that he possesses a degree in Law since 1994, i.e., prior to his entry in Central Government service in 1996. The criteria now being introduced by respondent no.2 is arbitrary, mischievous, malafide and full of malice. It is an attempt to re-write the rule and the criteria for selection cannot be altered by the authorities concerned after the process of selection had commenced.
3.11 It is also submitted that in regard to the three other candidates, whose names were sent to DOP&T for approval of ACC, the present application is silent whether such verification of experience was done or not. It has been submitted that it appears that the new eligibility criteria has been arbitrarily framed in respect of only the petitioner no.2 and petitioner no.4, which is highly discriminatory, malafide and in violation of principle of natural justice and equity. The UPSC in its affidavit dated 16.03.2022 has specifically mentioned that all the candidates were found eligible and they are fulfilling the short-listing criteria and modalities adopted by the Commission. Moreover, the primary responsibility to assess the eligibility RANI of a candidate is that of UPSC. Once the UPSC has taken a call then to introduce new criteria to assess the eligibility in the garb of verification and experience certificate cannot be undertaken by respondent no.2. Moreover, the respondent no.2 has not disclosed as to what was discovered in the concerned files of petitioner no.2 and petitioner no.4 after receipt of recommendation from UPSC.
3.12 It is reiterated that offers of appointment dated 08.11.2021 were sent to petitioner no.2 and 4 after approval of Hon’ble Minister of Law and Justice and both of them accepted the same on 11.11.2021. The vigilance clearance and other verifications and medical reports were sought from their parent department on 26.11.2021. The said reports were received on 13.12.2021. Clarification was sought by respondent no.2 regarding legal experience of petitioner no.2 and 4 on 31.12.2021. The UPSC responded on 18.01.2022 regarding the experience which was taken into consideration at the time of selection.
3.13 In view of the response of the UPSC, clarification was sought from the respective departments on 28.01.2022 and the said clarifications were received on 10.03.2022.
3.14 The Hon’ble Minister of Law and Justice is the competent authority and the offers of appointment were sent to petitioner no.2 and 4, consequent upon approval from the said competent authority. It means that whatever doubts were raised by the subordinate officers in the Department of Legal Affairs, the same were overruled by Hon’ble Minister of Law and Justice and the said authority did not have any doubts regarding eligibility of petitioner no.2. The next step was to send the proposal for appointment of petitioner no.2 to ACC for approval pursuant to order of this Court dated 26.07.2021. No criteria could have been devised thereafter. Moreover, in RANI the affidavit dated 16.03.2022 in para 4, it is stated that the concerned file, after receiving clarification from all respective departments in respect of petitioner no.2 and 4 was under submission/consideration in the Department of Legal Affairs for further processing the proposal in respect of these two candidates. The newly introduced criteria is liable to be ignored as the same is arbitrary and unsustainable in law.
3.15 It is also submitted that it appears that the new eligibility criteria has been imported from the draft ILS Rules circulated vide Circular dated 11.03.2022, wherein the comments of stakeholders were invited but the said draft rules cannot replace or substitute the notified Recruitment Rules holding the field till the said Recruitment Rules are amended or repealed following the due process of law.
3.16 An email dated 17.12.2021 was received from respondent no.2 wherein they had sought certain information to enable them to prepare the ACC proposal. The requisite details were submitted on the same day. Hence, petitioner no.2 has legitimate expectation thereafter that actual appointment letter and place of posting, as per the offer of appointment duly accepted by petitioner no.2, would be issued by respondent no.2, soon as it had become a binding contract and a right has been created in favour of petitioner no.2. The issue of formal appointment letter is the consequential effect of acceptance of offer of appointment. Hence, it has been prayed that the application filed by respondent no.2 may be dismissed with heavy costs.
4. An affidavit has also been filed by petitioner no.4 in reply to the affidavit dated 16.03.2022 filed by respondent no.2/Union of India. It is mentioned that UPSC through its counsel had submitted that the aspect concerning the eligibility of five candidates was examined by UPSC and they were found eligible for the subject post and the exercise as to whether RANI the documents/certificates produced by them were genuine, it was the exercise which the Ministry/respondent no.2 had to do. 4.[1] It has been submitted that the application under discussion is not maintainable on the ground that no such objection was raised before 06.03.2021 and the clarification sought in the application is in the nature of laying new rules de-hors the existing rules or criteria. The laying of rules is the legislative function, which cannot be done by this Court. The clarification sought is beyond the purview of order dated 26.07.2021 and the remedy is to file review or challenge the order dated 26.07.2021 itself. 4.[2] It is further submitted that in the affidavit dated 16.03.2022, respondent no. 2 had stated that the information sought from the respective departments regarding experience of these two candidates was received and the file was being processed. At no point of time, it was stated that the departments had disowned the candidates regarding their eligibility. No new facts or subsequent facts, which were not available at the time of disposing of the writ petition vide order dated 26.07.2021, were noticed, so no modification is possible and only a review or appeal may lie. The Minister of Law and Justice/Competent Authority has already approved the appointment, so, there were no doubts regarding eligibility of these two candidates. It is nowhere mentioned that 16 years of legal experience from the date of grant of the law degree is required and this new clause of legal experience being introduced at this stage is not permitted in law. The Court cannot sit in appeal over the decision of the Recruiting Agency, which had examined the candidates and found them eligible as per rules unless and until a case of malafide played by such Recruitment Agency is pleaded, which is not a case of respondent no.2 before this Court. Hence, it has been prayed that application be dismissed with costs. RANI
5. Respondent no.2 has also filed an affidavit in compliance to order dated 23.02.2022. It is submitted that DOP&T vide OM dated 28.02.2022 had sought certain clarification from respondent no.2. The issue regarding eligibility of petitioner no.2 and 4 was raised after receiving the recommendation from UPSC. The said recommendation was received on 24.02.2020, one departmental candidate namely Mr. R.K. Srivastava was promoted to the JS& LA (Legal Department) in the meantime and there is no other candidate to be appointed to the post of JS&LA, overlooking the interest of the candidates recommended by UPSC.
6. In the written submissions filed by respondent no.2/UOI, it is submitted that the candidates cannot be appointed to the post of JS&LA, unless their candidature is approved by Appointments Committee of Cabinet (ACC). The proposal for appointment of petitioner no.2 and 4 is under consideration and subject to verification of their legal experience, as claimed in the application from the said post, clarifications received were submitted to the Minister of Law and Justice for consideration and after receipt of the said file from the Hon’ble Minister, the matter was taken up with DO&PT, so modification has been sought in para 2 of the order dated 26.07.2021 to the extent that petitioners be appointed subject to verification of documents/certificates submitted by the candidates and fulfilling the requisite criteria required for appointment.
7. On behalf of the petitioner no.2, it has been submitted that respondent no.2 deliberately suppressed from this Court that the experience certificates produced by petitioner no.2 in respect of legal experience were issued by the concerned authorities. The respondent no.2 has not approached this Court with clean hands; the person at serial no.5 of the select list has already been appointed and the petitioner no.2 at serial no.2, so, he cannot be denied the RANI appointment.
8. Written submissions were submitted on behalf of petitioner no.4 reiterating his stand that has already been discussed above. It has been submitted that the doubt concerning the eligibility of petitioner no.2 and 4 were never raised. Respondent no.2 also had not disclosed the communication dated 31.12.2021 received from UPSC. The petitioner no.4 has legal experience of 26 years and 3 months as a Commissioned Officer, yet a frivolous plea of date of issue of marksheet of L.LB is being raised; the ILS Rules do not contain the requirement of 16 years legal experience from the date of issue of marksheet of L.L.B and no such rule can be introduced at this stage; the terms ‘law degree as pre-requisite’ and ‘legal affairs exclusively’ for counting experience are being introduced after recruitment process is over and rather offer of appointment has been issued and duly accepted by petitioner no.4. Respondent no.4 is delaying the submission of proposal for processing before ACC and denying the consequential benefits, through substantially altering the eligibility criteria and seeking approval of this Court under the garb of modification of order. So, it has prayed that the application may be dismissed.
9. The writ petition was disposed of on 26.07.2021. The direction was issued that since the petitioners have been declared successful, so the judgment of the Tribunal dated 04.03.2020 be given effect to. As a result thereof, the petitioners will stand appointed to the post of JS&LA. Six weeks time was given to do the needful. The application under discussion was moved on 10.02.2022, i.e., after about six months from the date of passing of the order. The file was submitted to the Competent Authority, i.e., Hon’ble Minister of Law & Justice on 09.07.2021 and after passing of judgment dated 26.07.2021, the offer of appointment were sent to petitioner RANI no.2 and 4 on 08.11.2021, consequent to approval by Hon’ble Minister of Law & Justice. The said offers were accepted by these two candidates on 11.11.2021. Respondent no.2 had sought vigilance clearance, character and antecedent verification report and medical examination report etc. from the parent departments of these two candidates on 26.11.2021 and these reports were received. Soon thereafter, on 31.12.2021, the clarification was sought from UPSC regarding the legal experience which was taken into consideration by Commission in respect of these two candidates and the reply of the Commission was received on 18.11.2021.
10. The UPSC in its short affidavit, has mentioned that all the five candidates including petitioner no.2 and 4 were found eligible by Commission in accordance with ILS Rules, 1957 and they fulfilled essential qualification and experience as mentioned in the requisition submitted by Ministry of Law & Justice/Respondent no.2. It is further mentioned that all the five recommended candidates fulfilled the short-listing criteria and modalities to be adopted by the Commission. Accordingly, a recommendation letter was sent on 24.02.2020 and respondent no.2 was only to check the veracity of the documents/certificates furnished by the selected candidates from the issuing departments. This does not mean that new conditions regarding experience can be introduced at that stage and the administrative departments can be asked to clarify whether possession of degree in law was a pre-requisite for initial or subsequent appointment of petitioner no.2 and 4 in the Government to qualify their experience as the legal experience or substantial work of legal affairs was being allocated to them or not, because both these conditions are neither to be found in the ILS Rules or the requisition sent by respondent no.2 to UPSC.
11. Till date, the respondent no.2 has not placed on record, the responses RANI received from different departments to the inquiries raised by it regarding the clarification sought in respect of their experience. UPSC has already satisfied itself about the requisite qualifications of petitioner no.2 and petitioner no.4 as stated hereinabove, hence no question can be asked to the present departments of petitioner no.2 and 4, except the authenticity of the certificates considered by UPSC.
12. We agree with the submission made by learned counsel appearing on behalf of petitioner no.2 and 4 that the goalpost cannot be changed after the match has begun. In the present case, respondent no.2/Ministry of Law & Justice is trying to change the goalpost after the match has finished. Under no circumstances, respondent no.2 can go beyond the educational qualification and the experience prescribed in ILS Rules, and the requisition sent to UPSC, which forms basis of the selection of the five candidates, including the petitioner no.2 and 4.
13. It appears that the application under discussion has been moved by respondent no.2 only with a view to find an escape route in the contempt petition moved by petitioner no.2 and 4 as the order passed by this Court on 26.07.2021 has not been complied with till date irrespective of the fact that six weeks’ time was granted to comply with the same and about 1 year and 5 months have already passed since the passing of the said order.
14. It is also pertinent to note here that the Competent Authority, i.e., Minister of Law & Justice, has already accepted the recommendation of UPSC and has directed for issuance of offers of appointment, which were duly issued on 08.11.2021 and the said offers were duly accepted by petitioner no.2 and 4 on 11.11.2021 and the only consequent step for respondent no.2 was to issue appointment letters, which, it has failed to issue for the reasons best known to its officials. RANI
15. The application filed by respondent no.2 is without any merit and the same is hereby dismissed with cost of Rs.25,000/- to be deposited with Delhi High Court Bar Association within four weeks. Receipt of the same be filed in the Registry within six weeks.
TALWANT SINGH (JUDGE)
RAJIV SHAKDHER (JUDGE) DECEMBER 23, 2022 RANI