IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 15321 of 2009 Date of Decision: August 3, 2010 Dr. Ashwani Kumar Dalal …Petitioner Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Dr. Balram Gupta, Senior Advocate, with Mr. Pankaj Sharma, Advocate, for the petitioner. Mr. O.S. Batalvi, Central Govt. Standing Counsel, for respondent No. 2. Mr. Amar Vivek, Advocate, for respondent Nos. 3 and 4. Mr. D.R. Sharma, Advocate, for respondent Nos. 6 and 7. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges order dated 17.8.2009, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) disposing of the Original Application No. 649/CH/2009 in terms of its detailed order dated 31.7.2009 passed in O.A. No. 580/CH/2009 (Dr. Usha Dalal v. Union of India and others). The Tribunal has dismissed O.A. No. 580/CH/2009, which was filed by Dr. Usha Dalal, who is wife of the present CWP No. 15321 of 2009 petitioner. 2. The petitioner is aggrieved against the selection of Dr. Robin Kaushik-respondent No. 6 (respondent No. 5 before the Tribunal) for the post of Reader (General Surgery) at Government Medical College and Hospital, Chandigarh (for brevity, ‘GMCH, Chandigarh’). On the requisition sent by the Chandigarh Administration, the Union Public Service Commissioner (for brevity, ‘the Commission’) on 28.2.2009 advertised the said post. Only three persons, namely, Dr. Ashwani Kumar Dalal-petitioner, Dr. Robin Kaushik- respondent No. 6 and Dr. Usha Dalal, responded to the said advertisement. At the relevant time the petitioner was working as officiating Reader, Department of General Surgery, GMCH, Chandigarh, for the last three years, Dr. Usha Dalal was working as Associate Professor at GMCH, Chandigarh and Dr. Robin Kaushik-respondent No. 6 was working as Senior Lecturer and joined the GMCH, Chandigarh on 5.6.2009. He was still on probation. 3. It is pertinent to mention here that Dr. J.D. Wig-respondent No. 7 (respondent No. 6 before the Tribunal) was also working as Professor in the Department of General Surgery, GMCH, Chandigarh, on re-employment basis after superannuation from Post Graduate Institute of Medical Education and Research, Chandigarh. He was Head of the Unit of the petitioner at GMCH, Chandigarh. Dr. J.D. Wig-respondent No. 7 left GMCH, Chandigarh 19 days prior to completion of his one year contract, which was to be completed on 20.4.2009. 4. All the above mentioned candidates were called for interview by the Commission at Delhi on 13.7.2009. Dr. J.D. Wig-respondent No. 7 was one of the Members of the Interview Board as Subject Expert. On the basis of interview, the Commission recommended the name of Dr. Robin Kaushik- respondent No. 6 for appointment as Reader (General Surgery) at GMCH, 2 CWP No. 15321 of 2009 Chandigarh. Firstly, Dr. Usha Dalal challenged the selection of respondent No. 6 before the Tribunal by filing O.A. No. 580/CH/2009, which was dismissed on 31.7.2009 (P-1). The petitioner also filed O.A. No. 649/CH/2009 and it has met the same fate. 5. The principal ground of challenge made by the petitioner is that as per the requirement of the Commission the members of the Interview Board/Subject Experts are required to furnish an Undertaking to the following effect: “I do not have any relative or any acquaintance or any of my student who is a candidate for the above-mentioned examination/interview and in whom I am interested and I am also not associated with any Interview/Training Centre.” 6. According to the petitioner the said undertaking is given by the Members of the Interview Board in two different situations, namely, (i) where the Commission itself provides the list of the candidates to the members of the Interview Board; or (ii) the Member of the Board may even otherwise know some candidate/candidates who may be appearing in the specific interview of which he/she would be the member of the Board. The petitioner further emphasised the dictionary meaning of word ‘acquaintance’, which means ‘familiarity’. According to the petitioner even if a member of the Interview Board is familiar with any candidate who is appearing in the Interview, such member could not associate himself/herself in the interview. It has been alleged by the petitioner that Dr. J.D. Wig-respondent No. 7 could not have been associated as Member of the Interview Board as a Subject Expert because of his acquaintance with the candidates, especially with the selected candidate i.e. Dr. Robin Kaushik-respondent No. 6. Alleging mala fide against Dr. J.D. Wig-respondent No. 7 it is stated that he had close family relation with Dr. 3 CWP No. 15321 of 2009 S.P. Kaushik, who is the father of Dr. Robin Kaushik. Both of them worked in the Department of General Surgery at PGIMER, Chandigarh for 16 years. They were stated to be fast friends and their wives were also working in the Department of Anaesthesia, PGIMER, Chandigarh. It has further been pointed out that Dr. Robin Kaushik-respondent No. 6 used to attend OPD and operate in the same Department in GMCH, Chandigarh, where respondent No. 7 was heading the Unit-III. The Tribunal observed that the allegation of mala fide and bias were serious which required furnishing of strict proof. Rejecting the aforesaid allegations the Tribunal observed in paras 12 and 13 as under:- “12. ……The burden of malafides is heavy on the person who alleges it and general statements of ill-will and bias will not suffice. Mere acquaintance or long association that too long time back cannot be a ground to quash the selection unless malafides or biased attitude is proved by some clinching evidence. Thus the contention of the applicant that respondent No. 6 has given wrong statement in prescribed proforma with regard to his acquaintance is not tenable for the reason that when respondent No. 6 filled up this proforma question arises whether he was aware of the names of the candidates appearing in selection, particularly the name of respondent No. 5. 13. ……It was noticed that the Selection Committee consisted of a President (Member of Union Public Service Commission), Prof. K.S. Chalam and two other members namely, Prof. P.S. Bedi and respondent No. 6 were associated as experts on the subject. Just because respondent No. 6 had acquaintance with the applicant’s parents 20 years ago on account of former’s working in PGI or at GMCH (for a short period of 11½ months) would not 4 CWP No. 15321 of 2009 be a ground enough to hold the selection as vitiated, particularly, when it is not shown that respondent No. 6 had to play a crucial role in the selection or had influenced the other members of the Selection Committee in any manner. In this connection, the averment of respondent No. 5 that he had earlier appeared before the Selection Committees in 2002 for the post of Asstt. Professor (Surgery) in PGI and in 2005 in AIIMS of which respondent No. 6 was an expert member and had he been his favourite, applicant would have been selected long back, cannot be brushed aside lightly.” 7. In para 14 of the its order the Tribunal has also rejected the allegation that respondent No. 7 was instrumental in getting OPD work to respondent No. 6 when he was sent on deputation to Shri H.S. Judge Institute of Dental Sciences, Sector 25, Chandigarh, because the letter was issued by the Secretary, Medical Education and Research, Chandigarh Administration on 7.7.2008. No hand of respondent No. 7 could be discernible for coordinating training of students in Dental College. Rejecting further allegations that the petitioner had strained relation with respondent No. 7, the Tribunal observed in para 15 as under:- “15. ……We have already pointed out above that respondent No. 6 was not the solitary player in the selection and he could not influence the wisdom of other members of the Selection Committee. Moreover, no evidence has been produced to prove this allegation. Further, if it were so, applicant or her husband should have protested about respondent No. 6’s inclusion in Selection Committee at the time of interview or immediately thereafter before leaving the UPSC premises. There is nothing on 5 CWP No. 15321 of 2009 record if they did so. It is only after the applicant learnt about respondent No. 5’s selection that she moved representations. The law is well settled that once having appeared in a test/interview without any protest and failed to qualify the selection, the candidate cannot later on turn round and assail the process of selection. ……” 8. We have heard learned counsel for the parties at length. On 26.7.2010, this Court had issued direction for production of original record of the Commission. At the hearing, the record has been produced in sealed cover. The Bench Secretary was asked to open the seal for perusal of the record by the Court. After perusal of the record we find that Dr. J.D. Wig- respondent No. 7 in response to a letter of the Commission, dated 25.6.2009, furnished an undertaking. Para 5 of the said undertaking reads as under:- “I have no relative, or acquaintance or student of mine, in whom I am interested, appearing as a candidate in the said Examination/Personality test Board; nor I am associated with any Coaching Institution.” 9. We are satisfied that the procedure laid down by the Commission has been complied with in letter and spirit. We find no merit in the argument raised by the petitioner that Dr. J.D. Wig-respondent No. 7 could not have been associated as Member of the Interview Board as a Subject Expert because of his acquaintance with the candidates appearing in the interview. The Tribunal has recorded a categorical finding that the applicant-petitioner has not been able to show that Dr. J.D. Wig-respondent No. 7 had to play a crucial role in the selection or had influenced the other members of the Interview Board in any manner. It has also come on record that Dr. Robin Kaushik- respondent No. 6 had earlier also appeared before the Selection Committees in 6 CWP No. 15321 of 2009 2002 for the post of Assistant Professor (Surgery) in PGIMER and in 2005 in AIIMS, New Delhi, of which Dr. J.D. Wig-respondent No. 7 was an Expert Member. But he was not selected. The Tribunal has further noticed that no protest was raised either by the petitioner or his wife Dr. Usha Dalal at the time of interview or immediately thereafter before leaving the Commission’s premises about the inclusion of Dr. J.D. Wig as a Subject Expert of the Interview Board. There are numerous letters on record jointly written by the petitioner and his wife much after the interview and declaration of result aimed at stopping respondent No. 6 from joining on the post of Reader. All this is after thought and the petitioner is estopped from raising any such objection. In that regard, the Tribunal has rightly placed reliance on the judgments of Hon’ble the Supreme Court in the cases of Madan Lal v. State of J&K, (1995) 3 SCC 486 and Om Parkash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, wherein it is held that once having appeared in a test/interview without any protest and failed to qualify the selection, the candidate cannot later on turn round and assail the process of selection. The principle in the nature of estoppel would be attracted in these facts and circumstances. Moreover, it is also settled that the Tribunals or the Courts cannot act as an appellate authority over the view expressed by the experts comprising Selection Committee. In that regard reliance may be placed on the judgments of Hon’ble the Supreme Court rendered in the cases of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR 1990 SC 434 and Madan Lal (supra). 10. As a sequel to the above discussion, we find no legal infirmity in the order passed by the Tribunal warranting interference by this Court. Accordingly, this petition fails and the same is dismissed. 11. The original record is re-sealed by the Bench Secretary and 7 CWP No. 15321 of 2009 returned to Mr. O.S. Batalvi, learned counsel for respondent No. 2. (M.M. KUMAR) JUDGE (MEHINDER SINGH SULLAR) August 3, 2010 JUDGE Pkapoor 8