Writ Petition No.5548 of 2012

21st April, 2014.

Petitioner Counsel: Mr. G.K. MASAND i/b Mr. A.A. MANWANI
Respondent Counsel: Mr. ASHOK SHETTY a/w. Mr. A.M. SETHNA, Mr. A.R. VARMA i/b Mr. H.P CHATURVEDI

Cases Cited:
Post Graduate Institute of Medical Education and Research, Chandigarh and ors. Vs. K.L. Narasimhan & anr., 1997 SCC (L&S) 1449 [Para 7,8,19]
Ajay Kumar Singh Vs. State of Bihar, (1994) 4 SCC 401 [Para 7,8,19]
Indra Sawhney Vs. UOI., 1992 Sup. (3) SCC 217 [Para 7]
Madan Lal & Ors Vs. State of J & K & ors., (1995) 3 SCC 486 [Para 9,12]
G.N. Nayak Vs. Goa University & ors., 2002(2) ALL MR 224 (S.C.)=(2002) 2 SCC 712 [Para 13]
Marripati Nagraja & ors. Vs. Government of Andhra Pradesh & ors., (2007) 11 SCC 522 [Para 14]
Dhananjay Malik & ors. Vs. State of Uttaranchal & ors., (2008) 4 SCC 171 [Para 15]
K.A. Nagamani Vs. Indian Airlines & ors., (2009) 5 SCC 515 [Para 16]
Dr. Preeti Srivastava & anr. Vs. State of M.P. & ors., (1999) 7 SCC 120 [Para 19]

JUDGMENT

M. S. SONAK, J. :- Rule. Rule is made returnable forthwith with the consent of the parties.

2. This petition is directed against the judgment and order dated 26.4.2012 in O.A. No.36 of 2011 passed by the Central Administrative Tribunal (CAT) rejecting the Petitioner's claim that the rules of reservation be applied for appointments to the post of Member (Technical) in Customs, Excise and Service Tax Appellate Tribunal (CESTAT).

3. By notification/advertisement dated 17.8.2009, applications came to be invited for appointment to the post of Member (Technical), CESTAT. There was nothing in the notification/advertisement to indicate that any post of Member (Technical) was reserved for the members of the Scheduled Caste or Scheduled Tribes. However, the notification/advertisement in prescribed format of application and clause '5' thereof, read as follows:

Application for the post of Member (Tech.) in CESTAT

(1) .....

(2) .....

(3) .....

(4) .....

(5) Whether belongs to SC/ST :

(6) .........

(7) ..........

(13) .........

4. In response to the aforesaid notification/advertisement, the Petitioner in the aforesaid prescribed format on 10.9.2009 applied for the post of Member (Tech.) CESTAT. The Petitioner was called upon to appear for the interview before the Selection Committee in the Judges Lounge, Supreme Court Premises, New Delhi, scheduled for 18.9.2010. The Petitioner accordingly, attended the interview held by the Selection Committee comprising Hon'ble Mr. Justice D.K. Jain (then sitting Judge of the Supreme Court), Hon'ble Mr. Justice Khandeparkar, President, CESTAT, Shri. Sunil Mitra, Revenue Secretary and the Law Secretary. Apart from the Petitioner, 12 other candidates also appeared for the interview which was held on 18.9.2010 as aforesaid.

5. It is a case of the Petitioner that he is a member of the Scheduled Caste and out of 13 candidates who appeared for the interview held on 18.9.2010, the Petitioner was the only candidate belonging to the Scheduled Caste category. It is the case of the Petitioner that the recruitment to the post of Member (Tech.) CESTAT is governed by the Customs, Excise and (Service Tax) Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 notified vide GSR No.168 dated 26.2.87 as amended from time to time. Rule 21 of the said Recruitment Rules specifically saves reservation etc. in favour of the Member of Scheduled Tribe and Scheduled Castes and Other Backward Class. Rule 21 of the Recruitment Rules reads thus:

Rule 21. Savings,-

Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, ex-servicemen and other special categories of persons, in accordance with the orders issued by the Central Government from time to time in this regard.

6. It is further the case of the Petitioner that the percentage of reservations prescribed for Scheduled Caste is 15%. However, in respect of posts to be filled-in by Direct Recruitment on all India basis, otherwise than by way of open competition, reservation percentage prescribed for the Scheduled Caste is 16.67% of the total number of posts. It is the case of the Petitioner that in the cadre of Members (Tech.), there are 11 posts out of which six posts had already been filled-in at the time of issuance of notification/advertisement dated 17.8.2009. Out of the balance posts, only one was filled-in by a member of the Scheduled Caste. Therefore, applying the reservation percentage of 16.67%, at least one more post ought to be reserved for the member of Scheduled Caste. It is the case of the Petitioner that upon treating one of the vacancies as reserved for Scheduled Caste, the candidature of the Petitioner who was the only reserved category applicant ought to have been considered by the Selection Committee as against such reserved post. Instead, the Selection Committee, by ignoring the position that at least one of the posts ought to have been treated as a reserved post, proceeded to consider the candidatures of all 13 candidates, including the Petitioner as per norms applicable to un-reserved vacancies. The Petitioner as a result, was not selected to be appointed to any of the vacancies to the post of Member (Tech.), CESTAT. This according to the Petitioner amounts to violation of Articles 14, 16 and 16A of the Constitution of India.

7. The CAT by its judgment and order dated 26.4.2012 in O.A. No.36 of 2011 has rejected the aforesaid contentions raised by and on behalf of the Petitioner. The CAT, in its judgment and order has taken notice that the Selection Committee was chaired by a Sitting Judge of the Supreme Court of India. The CAT has noted that there was no reservation policy made applicable to the appointments to CESTAT and that the decision in the cases of Post Graduate Institute of Medical Education and Research, Chandigarh and ors. vs. K.L. Narasimhan & anr. - 1997 SCC (L&S) 1449, Ajay Kumar Singh vs. State of Bihar - (1994) 4 SCC 401 and Indra Sawhney vs. UOI - 1992 Sup. (3) SCC 217, upon which reliance was placed by the Petitioner, were distinguishable. The CAT has also noted that the applicant participated in the selection process without any protest or demur and thereby took his chance to partake the selection process with full knowledge that his candidature was not being considered against any reserved post. Merely because, the Petitioner failed to get selected, he cannot turn around and challenge the selection process.

8.Mr. G.K. Masand, learned counsel appearing for the Petitioner questioned the impugned judgment and order dated 26.4.2012 by urging the following :

(a) The Recruitment Rules as applicable to appointments to Income Tax Appellate Tribunal (ITAT) and CESTAT are pari materia. The CAT in paragraph 20 of the impugned judgment and order has observed that the ITAT Rules prescribe for reservation, but such reservation clause is conspicuously absent in the CESTAT Rules. This observation is an error apparent on face of record, which vitiates the impugned judgment and order;

(b) The rulings of the Supreme Court in the case of Post Graduate Institute of Medical Education & Research, Chandigarh (supra) and Ajay Kumar Singh (supra) mandate providing reservation to the Members of the Scheduled Caste and Scheduled Tribes in matters of filling-up of vacancies by direct recruitment or by promotion. There was no basis for the CAT to distinguish these binding precedents and to hold that the reservation policy did not apply for appointments to the CESTAT;

(c) The Respondents were not entitled to place reliance upon U.O. Letter No.36016/1/88 Estt. (SCT) dated 26.10.1988 to contend that the posts of Judicial and Technical Members, CESTAT stand excluded from reservation policy or operation of reservation order. The U.O. Letter was not even in the nature of an executive instructions. In any case, even an executive instruction cannot operate to amend the CESTAT Rules, which guarantee reservations;

(d) The circumstance that after passing of the impugned judgment and order, Rule 21 of the CESTAT Rules has been amended to specifically exempt the posts of Judicial Member and Technical Member from the operation of the reservation orders, implies that prior to such amendment which came into force on 31.8.2012, the reservation orders did apply for recruitment to the posts of Judicial or Technical Member of the CESTAT. The case of the Petitioner that the CESTAT Rules indeed provide for reservation which even otherwise is a mandate flowing from Articles 14,16 and 16A of the Constitution of India was unduly ignored by the CAT.

9. Mr. Ashok Shetty, learned counsel appearing for the Respondents submitted that there was neither any jurisdictional error, nor perversity in the impugned judgment and order passed by the CAT. Further it was pointed out that the notification/advertisement dated 17.8.2009 did not declare that any of the posts of Member (Technical), CESTAT had been reserved for the members of Scheduled Caste or Scheduled Tribes. Despite this, the Petitioner choose to apply and participate in the selection process. Merely because the Petitioner has not been adjudged successful, the Petitioner cannot be permitted to assail the entire selection process. In this regard, reliance was placed upon the decision of the Supreme Court in the case of Madan Lal & Ors vs. State of J & K & ors. - (1995) 3 Supreme Court Cases 486. Mr. Shetty contended that the decisions of the Apex Court upon which the reliance had been placed by the Petitioner were distinguishable on facts and the same have been rightly distinguished by the CAT. Finally, Mr. Shetty submitted that the amendment to Rule 21 of the CESTAT Rules was clarificatory in nature and effected out of abundance of caution. On basis of the same, the Petitioner is not right in his contention that the reservation orders applied for recruitment to the post of Member (Tech.), CESTAT. For all these reasons, Mr. Shetty urged that this Court, in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, may not interfere with the impugned judgment and order dated 26.4.2012 passed by the CAT.

10. We now proceed to determine the rival contentions.

11. In the first place, it is to be noted that the notification/advertisement dated 17.8.2009, by which the applications were invited for appointment to the posts of Member (Tech.) CESTAT did not indicate that any of the posts had been reserved for the members of Scheduled Caste and Scheduled Tribes. The circumstance that format of application, at clause '5' required the applicant to state whether he belongs to Scheduled Caste/ Scheduled Tribes category, cannot lead to the inference that the notification/advertisement indicated that any of the posts of Member (Tech.) CESTAT were reserved posts. Considering that the posts with which we are concerned are that of Members, CESTAT, there is no scope to assume that the Petitioner was mislead into believing that any posts had been reserved for the Members of Scheduled Caste/ Scheduled Tribes. In absence of any clear indication in the notification/advertisement, the Petitioner could never have insisted that one of the posts be treated as 'reserved post' and the candidature of the Petitioner be considered against the same. The Petitioner, in the present case did not choose to challenge the notification/advertisement dated 17.8.2009 on the ground that no vacancy was declared as 'reserved vacancy'. Instead the Petitioner applied for appointment in pursuance of the notification/advertisement dated 17.8.2009 without any demur. Further, the Petitioner attended and participated in the interview held on 18.9.2010 which was an essential component of the selection process, again, without any protest or demur. To uphold the contention of the Petitioner, at this stage, would amount to denial of opportunity to other candidates belonging to the Scheduled Caste category, who may not have even bothered to apply for appointment to the post of Member (Tech.) because the advertisement did not specify that any such posts was reserved for the members of the Scheduled Caste/Scheduled Tribes. Besides, it is clear that the Petitioner 'took his chance' with the selection process and merely because the Petitioner was not successful, has now turned around and questioned the entire selection process. In such circumstances, relief was rightly denied to the Petitioner.

12. The Supreme Court in the case of Madan Lal (supra), at paras 9 and 10 has observed thus:

9. ............... The petitioners also appeared at the oral interview conducted by the concerned Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla - (AIR 1986 SC 1043), it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

10. Therefore, the result of interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful ...........(emphasis supplied)

13. The Supreme Court in the case of G.N. Nayak vs. Goa University & ors - (2002) 2 SCC 712 : [2002(2) ALL MR 224 (S.C.)], at para 22 has observed thus:-

"22. According to Respondent 5, the amendment of the qualifications for the post of Professor of Marine Science was illegal. It was contended that under Statute 8, it is the Executive Council which has to prescribe the qualifications after considering the recommendations of the Academic Council. According to Respondent 5, the qualifications which were prescribed in the 1995 Advertisement and handout issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic Council. Whether this is so or not, this is not a grievance which could have been raised by Respondent 5. He knew that there was a change in the eligibility criteria for the post yet he applied for the post and appeared at the interview without protest. He cannot be allowed to now contend that the eligibility criteria were wrongly framed." ..(emphasis supplied)

14. The Supreme Court in the case of Marripati Nagraja & ors. vs. Government of Andhra Pradesh & ors. - (2007) 11 SCC 522, at para 19 has observed thus:-

"19. ............................. The appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process". ..(emphasis supplied)

15. The Supreme Court in the case of Dhananjay Malik & ors. vs. State of Uttaranchal & ors. - (2008) 4 SCC 171, at paras 7 and 9 has observed thus:-

"7. It is not disputed that the respondent - writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.

8. ............

9. In the present case, as already pointed out, the respondent - writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done." ..(emphasis supplied)

16. The Supreme Court in the case of K.A. Nagamani Vs. Indian Airlines & ors.- (2009) 5 SCC 515, at para 54 has observed thus:

""54. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion." ..(emphasis supplied)

17. The CAT in para 18 of the impugned judgment and order has applied aforesaid principles enunciated by the Supreme Court by observing thus:-

"18. There is yet another aspect of the matter. The Notification issued by the Government inviting the applications from eligible candidates did not refer to any reservation. The applicant participated in the Selection Process with his eyes wide open. After having availed of the chance to partake in the selection process with the full knowledge that the Rules of Reservation are not applicable for selection, he cannot now turned round and challenge the selection process on the ground that it is totally vitiated, illegal, arbitrary etc. The applicant has not challenged the Notification also."

18. Accordingly, we endorse the aforesaid observation of the CAT and based thereon we are also of the opinion that the Petitioner was not entitled to any relief.

19. The contention of the Petitioner on the basis of the decisions in the case of Post Graduate Institute of Medical Education & Research, Chandigarh (supra) and Ajay Kumar Singh (supra) deserves rejection on the ground that a Constitution Bench of the Supreme Court of India in the case of Dr. Preeti Srivastava & anr. vs. State of M.P. & ors. (1999) 7 SCC 120, has specifically overruled the said two decisions. At para 48, Sujata V.Manohar J. speaking for the majority has observed thus:-

48. In this connection, our attention is also drawn to the emphasis placed in some of the judgments on the fact that since all the candidates finally appear and pass in the same examination, standards are maintained. Therefore, rules for admission do not have any bearing on standards. In Ajay Kumar Singh v. State of Bihar (supra) this Court, relying on Nivedita Jain - (1981) 4 SCC 296, said that everybody has to take the same post-graduate examination to qualify for a post-graduate degree. Therefore, the guarantee of quality lies in everybody passing the same final examination. The quality is guaranteed at the exit stage. Therefore, at the admission stage, even if students of lower merit are admitted, this will not cause any detriment to the standards. There are similar observations in Post Graduate Institute of Medical Education & Research vs. K. L. Narasimhan (supra). This reasoning cannot be accepted. The final pass marks in an examination indicate that the candidate possesses the minimum requisite knowledge for passing the examination. A pass mark is not a guarantee of excellence. There is a great deal of difference between a person who qualifies with the minimum passing marks and a person who qualifies with high marks. If excellence is to be promoted at post-graduate levels, the candidates qualifying should be able to secure good marks while qualifying. It may be that if the final examination standard itself is high, even a candidate with pass marks would have a reasonable standard. Basically, there is no single test for determining standards. It is the result of a sum total of all the inputs - calibre of students, calibre of teachers, teaching facilities, hospital facilities, standard of examinations etc. that will guarantee proper standards at the stage of exit. We, therefore, disagree with the reasoning and conclusion in Ajay Kumar Singh & Ors. v. Stage of Bihar (supra) and Post Graduate Institute of Medical Education & Research vs. K. L. Narasimhan (supra). ..(emphasis supplied)

20. Apart from the aforesaid, we see neither any jurisdictional error nor perversity in the approach of the CAT in distinguishing the said two decisions and concluding that they did not apply to the fact situation of the present case.

21. The Petitioner's contention that the CESTAT Rules and ITAT Rules are pari materia, appears to be well founded. However, both the set of rules, in their respective savings clause provide that nothing in the Rule shall affect reservations and other concessions required to be provided or Scheduled Caste/Scheduled Tribes in accordance with the orders issued by the Central Government from time to time in this regard. In so far as the appointments to CESTAT are concerned, the Petitioner was in no position to produce any orders issued by the Central Government specifically making applicable the reservation policy for recruitment to the posts of Member (Tech.) CESTAT. In any case, no useful purpose will be served by delving any deeper upon this issue in the light of our opinion, that the Petitioner, having failed to question the advertisement/notification dated 17.8.2009 and further having taken his chance in the selection process, was not entitled to turn round and raise such challenges.

22. For the same reasons, no useful purpose will be served in addressing the contentions raised in sub-paragraphs (c)& (d) of paragraph 8 of this judgment and order. Rule 21 of CESTAT Rules merely provides that nothing in the CESTAT Rules shall affect reservations to be provided for Scheduled Caste in accordance with orders issued by the Central Government from time to time in this regard. No specific orders were produced on record with regard to reservations in appointments to the posts of Members, CESTAT. In a given case , it is possible that the Rules are amended for the purposes of removal of ambiguity or out of abundance of caution. In the present case, notification/advertisement dated 17.8.2009 did not indicate that any post of member (Tech.) was reserved for the Members of Scheduled Caste/ Scheduled Tribes. The Petitioner without challenge to such notification/advertisement, applied and took his chance in the selection process. At the behest of such Petitioner, we are not persuaded to go into the larger issues so raised in any greater details.

23. Upon consideration of the matter in its entirety, we are unable to detect any jurisdictional error or perversity in the reasoning adopted by the CAT in passing the impugned judgment and order. Even if we were to disagree with one or two minor observations, the same would make no difference to the conclusion arrived at by the CAT. Accordingly, in the exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India, no case has been made out warranting interference.

24. Rule is therefore, liable to be discharged and is so discharged.

25. In the facts and circumstances of the present case, there shall be no order as to costs.

Petition dismissed.