JUDGMENT
P.K. Bhasin, J:
1. By way of these writ petitions under Articles 226 and 227 of the Constitution of India the petitioners of the two writ petitions have challenged the order dated 22-02-2005 passed by the Central Administrative Tribunal, Principal Bench, New Delhi(hereinafter referred to as ?the Tribunal?) in O.A. No. 2294/2002 filed by one Mrs. Mukesh Lata Gautam, who is respondent No. 5 in the writ petition of Shri S.C. Sharma and is Respondent No. 1 in the writ petition of the Union Public Service Commission, whereby the selection and appointment of the petitioner Shri S.C. Sharma to the post of Senior Research Officer(Research Division) in the Central Institute of Research Training and Employment(CIRTES), Ministry of Labour, Government of India, has been quashed. Since both these petitions seek to challenge the same order of the tribunal and the points involved therein for the determination of this Court are also common and were heard together we propose to decide the same by this common judgment and for the sake of convenience we shall be referring to the parties as arraigned in the Writ Petition No. 7803 of 2005 filed by Sh. S.C. Sharma whose appointment stands quashed at the instance of one Ms. Mukesh Lata Gautam, who is respondent No. 5 in his writ petition.
2. The relevant facts leading to the filing of the application before the tribunal under Section 19 of the Administrative Tribunals Act, 1985 by the respondent No. 5 are that the post of Senior Research Officer(SRO) in Research Division in CIRTES had been advertised in April, 2001 for being filled up by way of direct recruitment. However, even the already employed Government servants, like the petitioner and respondent No. 5 could also apply. The petitioner and respondent No. 5, besides others, applied for the said post. The petitioner at that time was employed as Sub-Regional Employment Officer in the Coaching cum Guidance Centre for Scheduled Caste and Scheduled Tribes under the Directorate General of Employment and Training(DGEandT), Ministry of Labour. Earlier to that he was working in CIRTES as Senior Technical Assistant(STA). Respondent No. 5 was already employed at that time in CIRTES as a Research Officer. The petitioner was selected in the interview conducted by the Union Public Service Commission (UPSC) on 17-10-2001 and was appointed w.e.f. 3-10-2002 after he resigned from his post of SREO. The respondent No. 5, who claims to have been placed at number 2 position in the select list, felt that, in fact, she should have been appointed because the petitioner S.C.Sharma was not even eligible for the post in question and also for the reason that his ACR Dossiers were not forwarded to the UPSC since in December, 1994 he had been inflicted a major penalty of stoppage of one increment for some misconduct and that material fact had been kept away from the Selection Board of the UPSC. So, she filed an application before the tribunal in October , 2003 for quashing the appointment of Mr. S.C.Sharma. She challenged the selection of the present petitioner and also put forth her claim for appointment as Senior Research Officer. In her application she had claimed that, in fact, she along with the present petitioner had applied for the post of Senior Research Officer in the Research Division as well as for the same post in the CSC Division of the CIRTES which post had also been advertised in the year 2001 although the vacancies for these posts in both the Divisions had accrued many years ago. She had also claimed that although steps should have been taken for filling up these two posts immediately on their becoming available but the Government did not do that and kept both the posts vacant. For the posts of SRO in the CSC Division one Shri L.V. Reddy was selected while the petitioner Shri S.C. Sharma was selected by the UPSC for the post of SRO in the Research Division of CIRTES. The respondent No. 5 claimed that in the select panel for the post in the CSC Division her name was at serial No. 2 and Shri S.C. Sharma did not find any place in the select panel for that post for which he was interviewed on 13-09-2001. However, he was selected for the other post in the Research Division for which he was interviewed on 17-10- 2001. It was her contention that the petitioner who could not get selected in the interview held on 13-09-2001 for the same post in another Division could not have suddenly been found fit for selection for the post in question after one month. The respondent No. 5 had also claimed in her application that she could also be promoted to the post in question from promotion quota retrospectively from 01-01-97 from which date she had, in fact, been officiating on that post on ad hoc basis.
3. The O.A. was contested by the respondents. Respondents No. 1 to 3 while admitting that the petitioner herein was awarded the punishment of stoppage of one increment for a year claimed that the period of one year had already expired on 30th November, 1995 and, therefore, the petitioner S.C.Sharma was free from vigilance angle after that date for any future promotion. It was also claimed that the respondent No. 5 herein had made a representation to the UPSC against the selection of the petitioner and after examining the matter the UPSC informed that no action was to be taken on her representation as she had already been provided the chance of consideration by the Selection Board and further requested the department to proceed further for the appointment of Shri S.C. Sharma.
4. The stand of the UPSC has been that in case of direct recruitment no marks are assigned to the service record of the candidates who are already employed in some Government Department and the selection process is finalized on the basis of performance of the candidate in the interview although ACRs of the candidates, if available, are also considered. It is also the stand of the UPSC that in case of direct recruitment the ACRs of the concerned candidates are of no relevance since the field of selection is open for competition to all those, whether they are already employed in any Government department or not, who possess the prescribed qualifications. The UPSC also claims that if ACRs of candidates in Government service are taken into consideration for selecting the meritorious candidates out of all the candidates belonging to different groups that may lead to unequal treatment to candidates from private sector in whose case ACRs are not called for and further that the consideration of the CR dossiers may tantamount to considering extraneous material which does not carry any weightage during the course of interview and if CR grading is given any weightage in awarding the marks, adverse CRs are likely to affect the performance of the candidates badly while good CRs will give undue advantage to the candidates in the Government service vis-a-vis candidates who are not in Government service. As far as the present petitioner is concerned the UPSC has taken a firm stand that he had been rightly selected in accordance with the relevant guidelines issued by the Department of Personnel and Training and in case the concerned Ministry/Department after verifying his service records which were not considered by the UPSC had found him unsuitable for appointment it was always free to reject his candidature.
5. The tribunal vide its impugned order allowed the petition of the respondent No. 5 herein only on the ground that when the UPSC had interviewed the applicants for the post in question the CR dossiers of the petitioner S.C.Sharma were not forwarded to it by the Government while the CR dossiers of other applicants were placed before the UPSC and since admittedly the petitioner had been penalized with a stoppage of one increment for one year that fact could not come to the notice of the UPSC at the time of his selection and so the selection of the petitioner herein was not proper. It was also observed by the tribunal that even though the UPSC had been informed that the CR dossiers of S.C. Sharma were not available but the reason given for the non-availability of his CR Dossiers was false. It was further observed by the tribunal that if the CR dossiers are not made available to the UPSC it can no doubt go ahead with the selection as per the relevant instructions but if the same are withheld intentionally in order to suppress material facts in respect of a particular candidate like in the present case and that candidate is selected then that selection would be without a proper consideration of the material facts. The tribunal while setting aside the appointment of the petitioner herein also directed the Director General of Employment and Training to conduct a fact finding enquiry regarding the non-submission of the ACRs of the petitioner to the UPSC and then to take appropriate action. The tribunal did not go into any other question raised by respondent No. 5 nor accepted her prayer for declaring her as selected or even her alternate prayer for promoting her to the post in question from promotion quota retrospectively from 01-01-97.
6. In the writ petition filed by Shri S.C. Sharma he has claimed that on receiving the appointment letter from the Government of India in September, 2002 he submitted his resignation from the post of SREO (Sub Regional Employment Officer) in DGEandT which he was holding at that time and joined CIRTES as SRO at New Delhi on 03-10-2002. Before he joined duty in October, 2002 the respondent No. 5 had made representations to the President of India, UPSC and the Labour Minister, Government of India against petitioner?s selection and for her appointment as SRO but her representations, in which she had levelled various allegations against the UPSC and her own Department were rejected after due enquiries and petitioner?s selection was confirmed. It was further pleaded by the petitioner that respondent No. 5 filed an application before the tribunal for setting aside his selection and for her selection for the post but during the proceedings before the tribunal the respondent No. 4 and the Government of India took the stand that the selection and appointment of the petitioner herein was on merit and as per rules and respondent No. 5 had not been found suitable on merits. However, on 22-02-2005 the tribunal quashed his selection on extraneous considerations without considering the relevancy of confidential reports or the prejudice caused to him because of his good confidential reports not having been placed before the respondent No. 4 and holding that although no Rules or selection criteria were violated yet the department?s act of non placing of petitioner?s confidential reports before the UPSC amounted to suppression of material fact.
7. We have heard the learned Counsel for the parties who reiterated their respective stands which we have already noticed. From the stand taken by the Government and the UPSC it is clear that the petitioner was fully qualified to apply for the post in question. He was interviewed by the Selection Board constituted by the UPSC and was found fit for appointment and accordingly the UPSC had recommended his appointment as Senior Research Officer. There is no dispute that the ACR Dossiers of other Government employees who had also applied for the same post have been forwarded to the UPSC but not that of the present petitioner. The tribunal has observed that when the UPSC had asked for his ACRs his Department had informed the UPSC that the same were not available.
Thereafter, the UPSC did not insist for the same and went ahead with the selection process. The tribunal has also observed that there was nothing wrong in the decision of the UPSC in going ahead with the selection process even without the ACR Dossiers of the petitioner herein since as per the instructions the UPSC could go ahead with the selection process even in the absence of CR Dossiers. The UPSC has taken the stand that in case of direct recruitment no weightage is given to the ACRs of Government employees and their suitability is adjudged from their performance during the interview which is conducted by experts in the field for which selection is to be done and that the petitioner was found suitable in all respects and, therefore, recommendation for his appointment was made. Nothing has been brought on record by the respondent No. 5 to show any mala fides on the part of the members of the Selection Board constituted by the UPSC while selecting the petitioner. Even the tribunal has not found the decision of the UPSC to be in any way mala fide, arbitrary or in any way in violation of any Rules or instructions. The respondent No. 5 has also not been able to show as to how she had been prejudiced by the selection of the petitioner who, as noticed already, was, as per the UPSC, fully eligible and qualified for the post in question. We are of the view that the decision of the tribunal in quashing the selection of the petitioner is wholly unjustified and not sustainable at all. The tribunal had no basis to say that the explanation given by the department for the non-availability of the ACR Dossiers of the petitioner was false. This finding could not have been arrived at by the tribunal on the existing record. We are in agreement with the contention of the petitioner that if the tribunal had been convinced that the non-submission of the ACR Dossiers of the petitioner to the UPSC was intentional and the explanation given was false then there was no occasion for directing the concerned department to hold an enquiry for finding out the reasons for the non- submission of the ACR Dossiers of the petitioner to the UPSC. The tribunal has also not taken into consideration the fact that despite the recommendation of the UPSC the Government could still refuse appointment to the petitioner for the reason that he had suffered a penalty of stoppage of one increment in the past but as noticed already the stand of the department is that the case of the petitioner was clear from vigilance angle since the period of operation of the penalty was already over way back in the year 1995. If the department has not considered that penalty to be in any way sufficient to deny him the appointment to the post in question for which he had been found suitable by a body of experts we do not see any reason how the respondent No. 5 could raise any grievance in that regard. The tribunal ought not to have interfered at the behest of a candidate who had not been found suitable for the post in question by the UPSC. That attempt on the part of respondent No. 5 should, in fact, have been thwarted by the tribunal instead of setting aside the entire selection process and that too while holding that the UPSC was justified in going ahead with the selection process even without the ACR Dossiers of the petitioner.
8. We are, therefore, of the view that the impugned order of the tribunal being wholly unjustified and unsustainable and which has resulted in total miscarriage of justice and deprived the petitioner of his legitimate due cannot be sustained and needs to be set aside. Accordingly, both these writ petitions(being WP(C) No. 7803/2005 and WP(C) No. 18107/2005) are allowed and the order dated 22-02-2005 passed by the Central Administrative Tribunal, Principal Bench in O.A. No. 2294/2002 is hereby set aside and consequently the application of the respondent No. 5 Mrs. Mukesh Lata Gautam would stand dismissed and the petitioner?s appointment as Senior Research Officer (Research Division) in CIRTES, Pusa, New Delhi, which we were informed was cancelled by the Government vide its order dated 12-04-2005 and which was to be subject to the outcome of the writ petition of Shri S.C. Sharma, would stand restored and the said order dated 12-04-2005 revoked.