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2019 Supreme(Del) 1159
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, A.K. CHAWLA, JJ.
Union Public Service Commission – Appellant
Versus
R.J.R. Kasibhatla and Another – Respondents
Writ Petition (Civil) No. 5954 of 2017, Civil Miscellaneous Nos. 24729 of 2017, 3676 of 2018
Decided On : 07-03-2019
Advocate Appeared:
Ravinder Agarwal, Rajiv Dutta, Sameer Sinha, Gaurav Mahajan, Vinay Prakash Singh, Aditya, Devesh Kumar, Ruchir Mishra, Mukesh Kumar Tiwari, Abhishek Rana.
The assessment of eligibility for a position must be based on the applicant's disclosures and statements, and the tribunal cannot replace its view with that of the petitioner. The decision of the tribunal was set aside, and the petition was allowed.
Headnote:
UPSC - Appointment Dispute - Indian Legal Service Rules, 1957 - Rule 9 - Ph.D. in Law, 13 years of legal experience, short-listing criteria, assessment of eligibility, judicial review - The court found that the respondent's claim of practicing as an advocate while pursuing an LL.M. course was not supported by the evidence provided in his application. The court held that the tribunal could not replace its view with that of the petitioner, as the assessment of eligibility had to be based on the respondent's disclosures and statements. The decision of the tribunal was set aside.
Fact of the Case:
The respondent applied for the post of Additional Legal Adviser (ALA) and was not short-listed for interview by the UPSC due to a dispute over his claimed legal experience. The respondent then filed an Original Application before the Central Administrative Tribunal, which initially allowed the application based on a concession made by the petitioner. The petitioner filed a writ petition to challenge the order, and after a series of legal proceedings, the Tribunal ultimately allowed the Original Application on the premise that the respondent had the requisite 13 years of legal experience.
Finding of the Court:
The court found that the respondent's claim of practicing as an advocate while pursuing an LL.M. course was not supported by the evidence provided in his application. The court held that the tribunal could not replace its view with that of the petitioner, as the assessment of eligibility had to be based on the respondent's disclosures and statements. The decision of the tribunal was set aside.
Issues: The primary controversy was whether the tribunal was justified in concluding that the respondent had the requisite 13 years of legal experience and whether the tribunal could interfere with the assessment made by the petitioner UPSC.
Ratio Decidendi: The court held that the assessment of the respondent's eligibility had to be based on his disclosures and statements in the application, and the tribunal could not replace its view with that of the petitioner. The court found that the respondent's claim of practicing as an advocate while pursuing an LL.M. course was not supported by the evidence provided in his application.
Final Decision: The decision of the tribunal was set aside, and the petition was allowed. The parties were left to bear their respective costs.
VIPIN SANGHI, J.
1. The UPSC assails the order dated 14.3.2017 passed by the Central Administrative Tribunal, (The Tribunal) in O.A. No. 693/2014. The Tribunal has allowed the said application preferred by the respondent and directed the USPC to recommend the candidature of the respondent for appointment to the post of Additional Legal Adviser (ALA) in the Department of Legal Affairs in the Ministry of Law & Justice, to the competent authority.
2. The petitioner issued a public advertisement inviting applications for two posts of ALA in the Department of Legal Affairs, Ministry of Law & Justice. The advertisement was issued in July/August, 2013. The essential educational qualifications laid down in the advertisement were as follows:
"A person shall not be eligible for appointment by direct recruitment to a duty post in Grade II, unless he holds a degree in law of a recognized university or equivalent and unless he has been a member of a State Judicial Service for a period of not less than thirteen years or has held a - superior post in the legal department of State for a period of not less than thirteen years or a Central Government servant who has had experience in legal affairs for not less than thirteen years or is a qualified legal practitioner."
"Superior post in the Legal Department of a State" means that the applicant should have experience in the State Government in a post which is not clerical and which requires qualification of Degree in Law for appointment to it.
Note - Preference will be given to a person with experience in legal advice work."
3. The advertisement itself permitted the UPSC to adopt a short-listing criteria so as to raise the bar, in the eventuality of the number of applicants being large. Clause 3 of the "Instructions and Additional information to candidates for Recruitment by Selection" reads as follows:
"3. MINIMUM ESSENTIAL QUALIFICATIONS:
All applicants must fulfill the essential requirements of the post and other conditions stipulated in the advertisement. They are advised to satisfy themselves before applying that they possess at least the essential qualifications laid down for various posts. No enquiry asking for advice as to eligibility will be entertained.
NOTE I - The prescribed essential qualifications are the minimum and the mere possession of the same does not entitle candidates to be called for interview.
NOTE II - In the event of number of applications being large, commission will adopt short listing criteria to restrict the number of candidates to be called for interview to a reasonable number by any or more of the following methods:
(a) On the basis of higher educational qualifications than the minimum prescribed in the advertisement.
(b) On the basis of higher experience in the relevant field than the minimum prescribed in the advertisement.
(c) By counting experience before or after the acquisition of essential qualifications.
(d) By holding a Recruitment Test.
THE CANDIDATE SHOULD, THEREFORE, MENTION ALL HIS/HER QUALIFICATIONS AND EXPERIENCE IN THE RELEVANT FIELD OVER AND ABOVE THE MINIMUM QUALIFICATIONS"
4. For the two posts of additional legal adviser 314 applications were received and, consequently, the UPSC applied the short-listing criteria in respect of essential qualification as follows: Criteria No. I Essential Qualifications (A):
(i) Raised to Ph. D in Law+
(ii) Minimum of legal experience of 13 years (no change in it).
Criteria No. II Essential Qualifications (A):
(i) Raised to Post Graduation in law+
(ii) Raised to minimum of 20 years legal experience.
5. The respondent applied for the said post. Since the respondent holds the Ph.D. degree, he sought coverage in the first educational qualification criteria set out above. He claimed that he had 23 years one month and 21 days experience. Out of that, he claimed 8 years and 8 months as teaching experience, which the respondent did not accept as relevant. There is no dispute raised by the respondent/applicant to the said teaching exp
