Full Text
HIGH COURT OF DELHI
Date of Decision: 11.05.2022
MACCHITA MALIK ..... Petitioner
Through: Mr Percival Billimoria, Senior Advocate with Mr Arup Sinha and Ms Rachita Sood, Advocates with Petitioner in person.
Through: Mr Harish Vaidyanathan Shankar, CGSC with Ms S.
Bushra Kazim, Advocate.
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA NAJMI WAZIRI, J. (ORAL)
The hearing has been conducted through hybrid mode (physical and virtual hearing).
JUDGMENT
1. The petitioner and possibly his family too, aspire that he serve the country through an all India service, be it in the coveted Indian Administrative Service („IAS‟) or the Indian Foreign Service („IFS‟) or the Indian Police Service („IPS‟). He was successful in the Civil Services Examination (“CSE”) 2012, in the Preliminary and Mains Examinations. He was interviewed on 04.04.2013. On the very next day as per procedure, he appeared for his medical examination at Ram Manohar Lohia („RML‟) Hospital, 2022:DHC:2111-DB New Delhi where, after normal medical examination, his case was referred to a Special Ophthalmic Board, with a note at the end of the medical examination sheet, recording that he had earlier undergone a medical ophthalmic intervention. The date, time and venue where the petitioner was to appear was never intimated to him. Otherwise, his vision with glasses was 6/6, all other physical parameters were recorded as being in order. Copy of the medical examination report has been supplied by the learned counsel for the respondent to the petitioner and the same is reproduced below:
2. The petitioner‟s examination result was not declared. He pursued his case with the DoP&T, Government of India. Some of the correspondence is reproduced below:-
3. The petitioner felt that he needed to pursue his claim before another forum. So, he approached the Central Administrative Tribunal (“CAT”) and it is after issuance of the latter‟s orders that his CSE, 2012 results were declared. The petitioner was shown at Serial no. 258 in the Merit List but his candidature stood cancelled, allegedly on account of his failure to attend the medical examination, as recommended on 05.04.2013. His candidature was cancelled on 07.12.2020. The cancellation was impugned in O.A. No. 505/2021, which was dismissed by the learned CAT on 05.03.2021 on the ground that: i) the applicant did not turn up for the mandatory medical examination, ii) he had approached the Tribunal after a long time and iii) once his candidature stood cancelled in the year 2013 itself, he could not be granted any relief.
4. The impugned order refers to a letter issued by RML Hospital on 23.06.2020, according to which, the petitioner was asked to appear before the Medical Board on 27.04.2013 but he did not appear before it. There is no supporting data, evidence on record or deposition of any person to suggest or establish as to by which mode, by which document or through whom the petitioner was intimated and asked to appear before the Medical Board on 27.04.2013.
5. On 22.09.2021, this court had recorded inter alia as under:- “… 3.[1] The petitioner was initially denied appointment on the ground that, he was embroiled in a criminal case. The record shows that, the petitioner had been discharged from the criminal case lodged against him, on 06.04.2019. The revision petition filed against the said order of discharge was dismissed, on 26.08.2019. This order is appended on page 98 of the case file.
3.2. However, the petitioner was thereafter denied appointment, on the ground that, he had failed to appear before the special ophthalmic board [in short "Board"], on 27.04.2013. The order to this effect, was passed on 07.12.2020. [See page 30 of the case file.] 3.[3] The petitioner assailed the order dated 07.12.2020, before the Central Administrative Tribunal (in short “the Tribunal”), via O.A. No. 505/2021. The Tribunal, vide the impugned order dated 05.03.2021, rejected the O.A. filed by the petitioner, based on the reasoning that, he had not appeared before the Board, on 27.04.2013. 3.[4] A perusal of the order dated 07.12.2020 shows that, it is founded not only on the non-appearance of the petitioner, before the Board on 27.04.2013, but also on the ground that, service allocation had been made in August, 2015.
4 Mr. A.K. Behera, learned senior counsel, who appears on behalf of the petitioner, says that, on 27.04.2013, the petitioner was in custody and hence, could not have appeared before the Board on the said date.
4.1. Apart from this, Mr. Behera also says that, the petitioner was not informed that, he was required to appear before the Board, on 27.04.2013.
5. Issue notice...”
6. No further documents have been shown to the court today by the respondent, no reports or proof of service of the said intimation/letter to the petitioner to appear before the Board has been shown or filed, neither has a counter affidavit been filed for the past eight months. On a query put to the learned counsel for the respondent as to whether any intimation was given to the petitioner to appear before the Medical Board on 27.04.2013, the answer, upon instructions, is that thus far nothing is found on the record therefore, nothing has been filed. The only conclusion the court would draw from the answer and the nonproduction of records or non-filing of a counter affidavit or any reply, is that there is nothing on the record to support the respondent‟s contention that the petitioner was intimated to appear before the Medical Board on 27.04.2013. Logically, therefore, the cancellation of the petitioner‟s candidature due to his alleged non-appearance before the Medical Board is baseless, arbitrary and is accordingly set aside.
7. The other ground is that the service allocation had been made in August, 2015. Well, it may have been so but that would not prejudice the petitioner‟s case on merits because if the cancellation of his candidature was without basis and void ab initio then the logical sequitor to his merit position warrants redemption. No benefit or reprieve can accrue, indeed need not accrue, to the respondents because of their own error and that too, against the petitioner‟s proven legitimate claim and right. The right of the petitioner to be appointed as per the merit position cannot be affected, denuded or diminished by passage of time simply because of sustained error or lack of diligence on behalf of the respondents. Only a handful of meritorious candidates are selected, from possibly a million aspirants, who attempt the CSE Preliminary Examinations annually. It is well known that it is through months of dedicated preparation, driven by single-minded devotion, commitment to succeed and individual merit that a candidate succeeds in the three-stage All India Civil Services Examinations. Ofcourse much to the joy and pride of the candidate and her/his family, relatives and friends.
8. Therefore, the petitioner cannot be denied cadre allocation because of the respondents‟ wrong. It is also a matter of record that the petitioner has been acquitted in the criminal case in which he was arraigned as an accused. A vicious tendency is seen to implicate persons from a village or a neighbouring village, in false criminal cases just to settle family disputes, unwarranted rivalries or out of sheer spite, to spoil the prospects of a young aspirant from being appointed in government service.
9. The discharge of the petitioner in the criminal case washes-off all doubts and is no stigma.
10. The impugned order of 02.12.2020 primarily lists two reasons for the cancellation of his candidature. The first is the reference to a criminal case i.e. the FIR dated 21.04.2021, which as recorded above stands negated, in view of the discharge of the petitioner on 06.04.2019. Even the revision petition against the said discharge was dismissed on 26.08.2019. The UPSC was duly intimated of these favourable developments by the petitioner through the latter‟s representation dated 02.09.2019. Therefore, the Department of Personnel and Training (“DoP&T”) had due knowledge of the same, yet this discharge and the clear slate of the petitioner‟s record does not find any mention in the order of 07.12.2020.
11. As regards his non-appearance before the Medical Board which is purported to be the substantive ground for the cancellation of his candidature, it is evident from the discussion above that there was no intimation whatsoever to the petitioner to appear before the Medical Board (Special Opthalmic Board). The purported ground of cancellation of his candidature being nonexistent, the petitioner cannot be said to have abstained, defaulted in or avoided or not presented himself before the Medical Board. Thus, the basis for cancellation was nonexistent and the cancellation of his candidature is set aside.
12. Interestingly, after the discharge from the criminal case, the petitioner represented to the DoP&T to allocate him his post and cadre. There was no response, so the petitioner approached the learned CAT which, directed the respondents to dispose-off his representation within two months of the said order dated 17.01.2020. There was no compliance. A contempt petition was filed by the petitioner on 07.12.2020, on which date itself the said letter was issued by the DoP&T, purporting to cancel his candidature.
13. The learned Senior Counsel for the petitioner submits that the issue of non-appearance before the Medical Board was communicated to the petitioner for the first time in December, 2020, in the reply/compliance affidavit filed by the respondent in the contempt petition.
14. Apropos the last ground for denial of employment and allocation of post and cadre to the petitioner on the basis that service allocation had already been made in August, 2015, the court is of the view of that both the inaction and erroneous action of the respondents cannot be to the detriment of the petitioner‟s rights and interests. It will be unjust to deny an individual her/his rights and claims, which have been duly established in law.
15. In reply to the petitioner‟s RTI queries, the DoP&T had informed by letter dated 26.11.2015, that action had been initiated with regard to his service allocation and as and when the decision was taken it would be conveyed to him. The said letter is reproduced hereunder:
16. On 15.07.2016, he was further intimated as under:
17. The said reply of November, 2015 the respondents admit that the petitioner‟s case was under submission, therefore, the decision of the service allocation in respect of Civil Services Examination, 2012 was yet to be taken and copies of the note sheet, communication, etc., could not be provided at that stage. Intimation of cancellation of the petitioner‟s candidature was made available to him for the first time by the respondent‟s order dated 07.12.2020. Aggrieved by the same, he promptly initiated legal remedies against it. In view of the above, it cannot be said that there was any delay by the respondent in approaching the courts or that his rights had dissipated because cadre allocation had already taken place much earlier or that his candidature stood cancelled in 2013. All actions by the respondents apropos the petitioner‟s candidature were unbeknownst to him, till 07.12.2020. He initiated a challenge immediately thereafter. He is not at any fault.
18. Indeed, the petitioner‟s allocation of post is duly protected in terms of the Note appended at the end of the list of candidates declared successful by the UPSC. The said Note reads as under:- “... Note:- It may be noted that UPSC has informed that they have withheld the result of one candidate, who falls in the merit order list below the candidate viz. Shri CH Ramakrishna (Roll No. 170319, Rank-257). Accordingly, the ranks of candidates from Shri Atul V (Roll No. 105229, earlier Rank 258) onwards have been reassigned for the purpose of service Allocation by adding 1(one) to their earlier ranks published by UPSC...”
19. The petitioner‟s All India Rank No. is 258, his Roll No. was 23120, therefore he would come immediately after the Rank No. 257, that is after Mr. C. H. Ramakrishna. In view of the above, the order of the learned Tribunal is set aside. The order of the DoP&T of 07.12.2013 as noted hereinabove is without basis and it too is set aside. The respondents are directed to appoint the petitioner in the appropriate Service and allocate him his cadre on the basis of his rank in CSE, 2012 (AIR 258) with consequential benefits of seniority though not necessarily of arrears of pay, within eight weeks of receipt of a copy of this order.
20. The petition along with pending applications is disposed-off, in terms of the above.
NAJMI WAZIRI, J SWARANA KANTA SHARMA, J MAY 11, 2022