Dismissed

K. Srinivasa Rao v. Union Public Service Commission

Telangana HC3 Jan 2014WP/24313/2001

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the selection and appointment of another candidate as Customs Appraiser. The court held that the UPSC's discretion to relax qualifications under the Recruitment Rules, 1988, was exercised lawfully and did not cause prejudice to the petitioner, as the fourth respondent had also applied and been considered.

What did the court decide?

The Writ Petition is dismissed. No order as to costs.

K. Srinivasa Rao Vs Union Public Service… — Pension and Retirement Benefits | Telangana HC (2014)

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HON’BLE SRI JUSTICE R.SUBHASH REDDY and THE HON’BLE SRI JUSTICE A.SHANKAR NARAYANA WRIT PETITION No.24313 of 2001

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ORDER: (per RSR, J)

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This Writ Petition is filed by the applicant in O.A.No.1697 of 1999, aggrieved of order, dated 29.12.2000 passed by the Central Administrative Tribunal, Hyderabad Bench at Hyderabad. By aforesaid order, the Administrative Tribunal dismissed O.A.No.1697 of 1999 filed by the petitioner herein questioning his

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non-selection and selection and appointment of the fourth respondent as Customs Appraiser, pursuant to advertisement No.3 of 1998 issued by the first respondent - Union Public Service Commission (UPSC), New Delhi.

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Respondent No.1 issued advertisement No.3 of 1998 inviting applications for several categories of posts, published in the Employment Newspaper. So far as this Writ Petition is concerned, in the said advertisement, there is reference No.F1/454/97-R.III, by which, the first respondent has invited applications to fill up the five posts of Customs Appraiser (Jewellery Expert) in the Customs

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Department, Ministry of Finance, Department of Revenue. Out of the said five posts, one post is reserved for Other Backward Classes candidates. In the said advertisement, the qualifications required for the aforesaid post are notified and they read as under:

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QUALIFICATIONS: ESSENTIAL: A. Educational: (i) Degree in Geology or any other branch of Science of recognized University or equivalent (ii) Diploma in Gemology from a recognized institution or two years experience of evaluation of precious stones, jewellery (old and new) and precious metals.

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The method of recruitment to the post of Customs Appraiser in the Collectorates of Customs under the Department of Revenue of Ministry of Finance, is governed by the Rules, framed under the proviso to Article 309 of the Constitution of India, titled as, the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988. Further, the method of recruitment, age limit and qualification etc., are mentioned in Rule 3 of the said Rules and are specified in column Nos.5 to 14 of the First Schedule thereof. In the said First Schedule, it is mentioned that the post of “Customs Appraiser” is a selection post, and education and other qualifications required for direct recruits read as under:

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1. For non-expert Customs Appraisers that is

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to say, category of Customs Appraiser other than those mentioned in the second schedule annexed to these rules.

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Essential

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Graduate degrees from a recognized University or

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degree.

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2. For expert Customs Appraisers:

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That is to say, categories of Customs Appraisers specified in the second schedule annexed to these rules.

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Note 1 : Qualifications are relaxable at the discretion of the U.P.S.C. in case of candidates otherwise well qualified.

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Note 2 : The qualification(s) regarding experience is/are at the discretion of the U.P.S.C. in the case of Scheduled Tribes if or any stage of selection, the UPSC is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancies reserved for them.

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The petitioner is a graduate in Mechanical Engineering from Karnataka University, Dharwad. He obtained Diploma in Gemology from the National Institute of Gemology in 1996. He has been working as Inspector in Customs and Excise from 1991. Petitioner and the fourth respondent herein have responded to advertisement No.3 of 1998 issued by the first respondent. Pursuant to the said advertisement, for the

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posts of Customs Appraiser, totally 349 candidates submitted applications, and 39 candidates were shortlisted and the petitioner and the fourth respondent were among 39. All the 39 candidates were interviewed, and the fourth respondent was selected and appointed. Interviews were held on

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21/22 December, 1998 and the Interview Board recommended five candidates, including the fourth respondent herein. The first respondent decided to give weightage of one year, two years and three years for possessing higher qualifications, namely, Master’s Degree, Master in Philosophy and Ph.d respectively, in the relevant subject. The Interview Board comprises two Advisers, who have technical knowledge and expertise to assess the candidates, in addition to the President of the Board.

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In this Writ Petition, mainly, it is the case of the petitioner that the selection and appointment of the fourth respondent is contrary to the selection criteria notified in advertisement No.3 of 1998.

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It is submitted by Sri Siva, learned counsel appearing for the petitioner that as per advertisement No.3 of 1998, essential qualifications are Degree in Geology or any other branch of Science of a recognized University or equivalent and Diploma in Gemology from a recognized

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institution, or two years experience of evaluation of precious stones, jewellery (old and new) and precious metals. It is contended by the learned counsel that though the fourth respondent is not having two years experience of evaluation of precious stones and his experience is only about one year seven months, the first respondent selected and appointed him contrary to the advertisement No.3 of 1998, published by it. It is further submitted by the learned counsel that the Diploma in Gemology from recognized university or two years experience of evaluation of precious stones, jewellery (old & new) and precious metals, is an essential qualification and it is not open for the first respondent to relax such qualification in selecting and appointing the fourth respondent, who is not having either Diploma in Gemology or two years experience of evaluation of precious stones, jewellery (old & new) and precious metals, as notified by the first respondent. It is also submitted that as the selection and appointment of the fourth respondent is illegal and contrary to advertisement No.3 of 1998, and as much as the petitioner is the next candidate in the order of appointment, he is entitled to be appointed as Customs Appraiser in the place of the fourth respondent.

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On the other hand, it is contended by Sri

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B.Narasimha Sarma, learned counsel appearing for the first respondent and Sri J.Sudheer, learned counsel appearing for the fourth respondent that there is no relaxation of qualification by the first respondent in selecting and appointing the fourth respondent to the post of Customs Appraiser, as pleaded by the petitioner. It is submitted that totally 349 applicants responded to the notification and ultimately, only 39 candidates were shortlisted by the first respondent and all of them were called for interview by the Interview Board. It is further submitted that in the First Schedule to the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988, there is note-1, as per which, qualifications are relaxable at the discretion of UPSC in case of candidates otherwise well qualified. It is further submitted that in view of the powers conferred under the said Note-1, the first respondent called for all the candidates, who were possessing the required qualification of Diploma in Gemology or two years experience of evaluation of precious stones, Jewellery (old & new) and precious metals and also all other candidates, who are not having two years experience but having better qualifications, namely, M.Sc., M.Phil and Ph.d. It is further submitted that in view of higher qualifications possessed by various applicants, the Interview Board used the discretion under Note-1 of the

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First Schedule of the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988. It is further submitted that the petitioner is claiming 5^th place in O.C. category and seeking appointment without there being any list as such. It is also submitted that as the case of the fourth respondent is considered in accordance with the Rules and as there is no prejudice caused to the petitioner, the impugned order passed by the Tribunal does not call for interference by this Court, to invalidate the appointment of the fourth respondent, at this stage.

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Sri Siva, learned counsel for the petitioner, in support of his arguments, placed reliance on the judgments of the Hon’ble Supreme Court in the cases of Ramana Dayaram Shetty v. International Airport Authority of India and other s^[1] , Syed Khalid Rizvi and others v. Union of India and other s^[2] and K.Manjusree v. State of Andhra Pradesh and another^[3] .

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In view of the submissions made by the learned counsel, the points which arise for consideration are, whether there is any arbitrariness in the process of selection and appointment of the fourth respondent to the post of Customs Appraiser, pursuant to advertisement No.3 of 1998, and whether on account of not notifying in

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the advertisement with regard to the relaxation of qualifications, the petitioner has suffered any prejudice.

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It is to be noticed that in the advertisement issued by the first respondent inviting applications to the posts of Customs Appraiser, the qualifications notified are 1) Degree in Geology or any other branch of Science of a recognized University or equivalent

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2) Diploma in Gemology from a recognized institution or two years experience of evaluation of precious stones, jewellery (old & new) and precious metals. It is also to be noticed that in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988 were framed to regulate the method of recruitment to the post of Customs Appraiser in the Collectorates of Customs under the Department of Revenue of the Ministry of Finance. As per Rule 3 of the said Rules, the method of recruitment, age limit, qualifications and other matters relating to the said post shall be as specified in Column Nos.5 to 14 of the First Schedule, in which, it is mentioned in column No.5 that the post of Customs Appraiser is a selection post and education and other qualifications required for direct recruits are mentioned in column No.8. A reading of Note1 of the First Schedule makes it very clear that

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qualifications are relaxable at the discretion of UPSC in case of candidates otherwise well qualified. Further, a reading of Note-2 indicates that the qualification(s) regarding experience is/are at the discretion of UPSC in the case of Scheduled Tribes, if sufficient number of candidates are not available. Both Note-1 and Note-2 operate independently. As per Note-1, there is a general power conferred on UPSC to relax any qualification in case of candidates otherwise well qualified.

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It is to be noticed that in pursuance of advertisement No.3 of 1998, uniformity has been adopted by UPSC in calling for the candidates, who fulfilled the eligibility criteria of qualifications as published in the Employment Newspaper and who qualified M.Sc., M.Phil and Ph.d in the relevant subject. Though the fourth respondent is having one year seven months experience, the first respondent had given one year weightage towards experience as he is possessing better qualification of M.Sc. and considered his candidature along with others, who came up for selection. In view of the powers conferred by UPSC under Note-1 of the First Schedule to the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988, and further, in view of uniform procedure adopted by the first respondent in calling for the

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candidates, who come within the zone of consideration, it cannot be said that such procedure adopted by the first respondent is either arbitrary or illegal or in contravention of the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988. Merely because such discretionary power of relaxation of qualification conferred by UPSC in case of applicants, who are well qualified, as notified in Note-1 of the First Schedule to the said Rules, it cannot be said that such discretionary power is exercised arbitrarily or illegally. In view of the fact that the said discretionary power is conferred under the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988 itself and in the absence of questioning the same, it is not possible to accept the claim of the petitioner that selection and appointment of the fourth respondent is either arbitrary or illegal.

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It is also to be noticed that the petitioner is qualified as per the qualification criteria notified in advertisement No.3 of 1998 as published in the Employment Newspaper, dated 14-20.02.1998, as such, the discretionary power of the first respondent with regard to relaxation of qualification does not come in the way of considering the candidature of the petitioner along with other short-listed candidates. As the petitioner applied for the post by fulfilling the eligibility criteria as per the

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advertisement published in the Employment Newspaper, his case was also considered along with other eligible candidates. In view of the same, this Court is of the opinion that the petitioner has not suffered any prejudice by the procedure adopted by the first respondent. The petitioner has taken the plea of prejudice and discrimination as if the fourth respondent did not respond to the notification and he was selected and appointed by the first respondent by using the discretionary power conferred under Note-1 of the First Schedule of the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988. But, the fourth respondent applied for the post and his case was considered along with the other eligible candidates, as such, the petitioner cannot plead that he suffered prejudice by considering the claim of the fourth respondent by using the discretionary power. There is also no material produced by the petitioner before this Court to show that he is the next candidate in the order of merit. In view of the same, the petitioner cannot have grievance against the selection and appointment of the fourth respondent, as the same is in accordance with the Rules.

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In the case of Ramana Dayaram Shetty (1 supra), the Hon’ble Supreme Court while dealing with the award

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of Government contracts, held that relaxation of the standard of eligibility at the time of considering the tenders or applications, will amount to a denial of opportunity to those who consider themselves ineligible did not apply.

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Further, in the case of Syed Khalid Rizvi and others (2 supra), the Hon’ble Supreme Court has drawn the distinction condition of service and condition of recruitment and held that the condition in the recruitment cannot be relaxed.

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Further, in the case of K.Manjusree (3 supra), the Hon’ble Supreme Court has held that selection criterion has to be prescribed in advance and rules of game cannot be changed afterwards.

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In this case, as much as the petitioner applied for the post of Customs Appraiser in pursuance of advertisement No.3 of 1998 and further, the selection and appointment of the fourth respondent in such post is in accordance with the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988, afore-cited judgments (1 to 3 supra) do not render any assistance to the case of the petitioner.

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As the petitioner’s case was already considered along with other 38 eligible candidates by the Interview Board and the procedure adopted by the first respondent is in conformity with Note-1 of the First Schedule of the

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Rules and as there is no change in the Rules after issuance of advertisement No.3 of 1998, afore-cited judgments would not support the claim of the petitioner having regard to the change in the fact situation. In any event, as there is no material to show that the petitioner is the next eligible candidate for appointment and as the procedure adopted by the first respondent in selecting and appointing the fourth respondent as Customs Appraiser, is in conformity with the Rules, and further, the fourth respondent was appointed as early as in 1998, we are of the view that there are no grounds to interfere with the impugned order passed by the Tribunal for grant of relief as prayed for.

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In that view of the matter, the Writ Petition is devoid of merit and it is accordingly dismissed. No order as to costs.

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Miscellaneous Petitions, if any pending in this writ petition shall stand closed.

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______________________ R.SUBHASH REDDY, J

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3^rd January, 2014

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________________________ A.SHANKAR NARAYANA, J

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