W.P.(C) Nos.4390/2010 & 2674/2010 Page 1 of 30 11 & 12 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C)No.2674/2010 Date of Decision : 13th September, 2010 % VIKAS SAKSENA ..... Petitioner Through: Mr. Ajay Kumar Porawali, Adv. with versus UNION OF INDIA AND OTHERS ..... Respondents Through: Mr. A.K. Bhardwaj, Adv. with Mr. A.K. Chauhan, DIG, Chief Law Officer, Coast Guard. Commandant G. Singh. AND + W.P.(C)No.4390/2010 NAGENDER SINGH ..... Petitioner Through: Mr. G.D. Gupta, Sr. Adv. with Mr. Yashpal Rangi, Adv. versus UOI AND ORS ..... Respondents Through: Mr. A.K. Bhardwaj, Adv. with Mr. A.K. Chauhan, DIG, Chief Law Officer, Coast Guard. Commandant G. Singh. CORAM :- HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? GITA MITTAL, J. (Oral) 1. These two writ petitions lay a challenge to the change in the selection process effected by the respondents for appointments to the post of Deputy Commandant (Law) in the Indian Coast Guard Service after the notified process stood completed and was at the stage of medical examination of the successful candidates. The petitioners also assail the denial of appointment to the said post to them despite their having W.P.(C) Nos.4390/2010 & 2674/2010 Page 2 of 30 admittedly successfully qualified in the notified selection process. 2. The undisputed facts giving rise to the writ petitions are noted hereafter. The respondents had issued an advertisement dated 12th November, 2009 inviting applications from Indian citizens for several posts including the posts of Deputy Commandant (Law) at a pay scale of `15,600-39100 (revised) with grade pay `6600/-. 3. So far as the procedure of selection was concerned, the advertisement has notified the applicants as follows:- “SELECTION PROCEDURE (a) Short listed candidates will be called for selection test/interview at CGSB, Noida (UP). Candidate’s excellence in Academics, Sports and NCC will be given due weightage whilst short listing the candidates through call up letters by Mid Dec 2009. Candidates who do not receive call up letter may assume that they have not come in the zone of short listing. Updated list of short listed candidates will be hosted on ICG website. (b) The selection process consists of two phases (i) Preliminary Selection Board (PSB), It consists of General Mental Ability Test in which the candidates will be tested for General Awareness, General Intelligence and Reasoning. (ii) Final Selection Board (FSB), It consists of Psychological Test, Group Testing and Interview (Personality Test). (c) Selection will be made only on the basis of performance of the candidate in FSB. Those found medically fit will be placed in the merit list. The candidates who qualify in the merit list vis-à- vis number of vacancies available will be issued with appointment letter. W.P.(C) Nos.4390/2010 & 2674/2010 Page 3 of 30 (d) Medical examination will be held at Delhi.” (underlining by us) 4. Shri Vikas Saxena, petitioner in WP(C)No.2674/2010 and Shri Nagender Singh, Petitioner in WP(C)No.4390/2010 had fulfilled the eligibility requirements and submitted applications for undergoing the selection process and appointment to the said post pursuant to the advertisement dated 12th November, 2009. Their applications were found in order resulting in issuance of a call letter dated 3rd December, 2009 to Shri Vikas Saxena and a call letter dated 30th November, 2009 to the other writ petitioner for appearance before the preliminary and final selection board. The directives contained in this letter as well have a bearing on the issue raised before this court and read as follows:- “4. Only those candidates who are qualified in Preliminary Selection Board (PSB) will appear in Final Selection Board (FSB) from 13-17 DEC 2009 at Coast Guard Selection Board, Noida. Those candidates who are finally recommended by FSB will undergo medical examination.” (underlining by us) 5. It is noteworthy that the Preliminary Selection Board (PSB hereafter) was conducted by the respondents from 10th December, 2009 and was held for three days. Out of the total of 32 candidates who appeared in the Preliminary Selection Board, only five candidates including the petitioners were recommended for appearance in the final selection process. It is an admitted fact that the Final Selection Board („FSB‟ hereafter) W.P.(C) Nos.4390/2010 & 2674/2010 Page 4 of 30 was held between 13th and 17th December, 2009. Out of five candidates who appeared in the Final Selection Board, three candidates, again including the two petitioners, were declared as successful. 6. In terms of the notified procedure, the Commandant (JG) on 17th December, 2009 issued the medical examination forms in the prescribed format to both the petitioners requiring them to appear before the Base Hospital, Delhi Cantt. for the medical examination, which was the only remaining step of the selection procedure. 7. The petitioners have complained that after leaving the premises of the Coast Guard Selection Board, they were telephonically informed to have a word on 18th December, 2009 with the Chief Law Officer at the Coast Guard Head Quarter, New Delhi. The submission is that as per the applicable and prescribed procedure, the Chief Law Officer has no role in the selection process for appointment to the post of Commandant (Law). 8. In terms of this telephonic direction, the petitioners submit that they reached the Coast Guard Head Quarter, New Delhi on 18th December, 2009 at 10:00 hrs. when they were directed to return on 21st December, 2009. To their surprise on 21st December, 2009, the petitioners were directed to appear before a new selection board chaired by the Chief Law Officer and undertake a written test as well as an interview on that very day. The result of this new selection procedure was informed on W.P.(C) Nos.4390/2010 & 2674/2010 Page 5 of 30 23rd December, 2009 when the petitioners were informed that they had failed in the interview which had been conducted, and consequently not selected. 9. The petitioners separately represented against the procedure which had been adopted and the refusal of the respondents to appoint them to the post for which they had successfully undertaken the prescribed selection procedure. Upon failure of the respondents to accept the representation of the petitioners and do justice to them, Shri Vikas Saxena filed WP(C)No.2674/2010 on or about 28th March, 2010 seeking a declaration that the selection made by the respondents for the post of Deputy Commandant (Law) is illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and issuance of the writ of mandamus quashing the selection made by the respondents for the said post. A further prayer was made for a direction to the respondents to make the selection in accordance with the notified procedure and for completion of selection in terms of the notified procedure and permit the petitioner to undertake the medical examination. 10. We may note that along with the writ petition, the petitioner has filed an application seeking interim orders against the respondents to keep one post of Deputy Commandant (Law) vacant so as to enable the petitioner to get appointment during the pendency of the writ petition. When the writ petition came up for hearing on 22nd April, 2010, notice was issued to the respondents to show cause and so far as the stay application W.P.(C) Nos.4390/2010 & 2674/2010 Page 6 of 30 was concerned, the following directions were made:- “CM No.5342/2010 (Stay) Notice. Mr. Gaurav Khanna, Advocate for Union of India accepts notice. It is directed that appointment, if any, made by the respondents shall be subject to the final outcome of the writ petition. The respondents shall inform the appointees in terms of the order passed by this Court during the pendency of the writ petition. Dasti to the parties.” 11. Shri Nagender Singh has filed WP(C)No.4390/2010 shortly thereafter also seeking directions to the respondents to act upon the recommendation of the Final Selection Board in terms of the advertisement dated 12th November, 2009 and to appoint the petitioner to the post of Deputy Commandant (Law) in terms of the notified norms and procedure with all consequential benefits. In as much as these writ petitions raise identical questions of law and fact, we have heard them together and propose to decide them by the single judgment. 12. The petitioners have primarily made a grievance that the respondents had no authority to change the selection process mid way after its commencement and after the petitioners had successfully undertaken the entire notified selection process. Mr. G.D. Gupta, learned Senior counsel appearing for Shri Nagender Singh has submitted that the petitioners had been in fact recommended for appointment and, for this reason, only the formality of the medical examination was remaining to be W.P.(C) Nos.4390/2010 & 2674/2010 Page 7 of 30 undergone by them. In this behalf reliance has been placed upon the forms in prescribed format for undergoing the medical examination at the Base Hospital, Delhi Cantt. duly signed by the Commandant which had been handed over to the petitioners on 17th December, 2009. 13. The writ petitions are opposed by the respondents who have filed counter affidavits taking an identical stand in the matters. 14. So far as the procedure which was adopted on 21st December, 2009 is concerned, the respondents have in the counter affidavits stated that “the decision for appearance of the candidates recommended by the final selection board for the post of Deputy Commandant (Law) had been approved before hand by the competent authority on 24th November, 2009.” It is further stated that in this background, the three candidates who had been selected in the final selection board were required to appear before the Professional Competency Board held at the Coast Guard Head Quarters on 21st December, 2009. 15. With regard to information to the candidates with regard to the Professional Competency Board is concerned, in the counter affidavit the respondents have stated that “before commencement of PSB/FSB, the candidates who reported for the Deputy Commandant (Law) selection were informed during the inaugural address that those qualifying FSB will have to appear before a Professional Competency Board (PCB) since Deputy W.P.(C) Nos.4390/2010 & 2674/2010 Page 8 of 30 Commandant (Law) is a higher rank.” 16. These assertions of the respondents have been vehemently contested by both the petitioners who have on affidavit submitted that no such information was given at any stage till they were compelled to undergo the testing on 21st December, 2009. 17. We may notice yet another plea which has been taken in the counter affidavit. The respondents have further stated that the board conducted the professional competency assessment through a “short test of general law and basic maritime law, followed by interview both aimed at assessing the professional knowledge, legal awareness and suitability of candidate for induction into the post of Deputy Commandant (Law).” A further prescription that “it is expected that the candidates would score at least 50% marks in the written test” is mentioned in the counter affidavit. 18. It is an admitted position that in the advertisement which had been issued on 12th November, 2009, the respondents did not notify that candidates who were successful in the final selection board would be required to appear before a further professional competency board or the manner of its testing. No syllabi or distribution of marks was also provided. 19. In view of the pleas which have been set up in the counter affidavit, we called upon the respondents to produce the relevant records. A file bearing No.RT/0103/FAST TRACK captioned as “RECRUITMENT OF ASST COMDTS-FAST TRACK – W.P.(C) Nos.4390/2010 & 2674/2010 Page 9 of 30 01/2010 BATCH” was produced before us. This file refers to the advertisement which was issued for fast track selection of Assistant Commandants of GD/GD P/N/CPL/Tech which had been published all over India in national daily newspapers on 10th November, 2009 and telecast on six T.V. channels. Interestingly, there is not even a reference to any issue involving Deputy Commandants in this file. 20. In this file, on 18th November, 2009, a Note 9 was recorded by Shri Braj Kishore Commandant (JG) which included at Sl.No.3 the proposed schedule for the recruitment of Assistant Commandants (Fast Track) commencing from the stage of the last date of receipt of applications till the commencement of basic training on 4th of January, 2010. At Sl.No.4, of Note 9 the following was also proposed:- “4. The Preliminary Selection Board of officers for Fast Track Selection will comprise of total 06 members (one set of 03 assessors including the President and 03 other members as nominated by the Admin directorate). The Board will conduct written test (GMAT-verbal and Non-verbal) as well as Stage-I screening during the PSB. (10-12 Dec 09). On completion of PSB, the FSB will be conducted at CGSB, Noida w.e.f. 13- 17 Dec 09.” The above schedule was recommended for the DDG‟s approval on 20th November, 2009 by Shri B.K. Patasahani, DIG, PD (HRD). 21. This file then went up to the Deputy Director General who on 20th November, 2009 called upon the Chief Law Officer to comment thereon. A noting of the Chief Law Officer (`CLO‟ for W.P.(C) Nos.4390/2010 & 2674/2010 Page 10 of 30 brevity) made on 23rd November, 2009 was relied upon by the respondents before us as the proposal for assessment by a Professional Competency Board in the cases in hand and deserves to be considered in extenso. The same reads as follows:- “Since candidates for Sl(e) of Encl 1A are for higher rank, propose suitability be assessed by professional board also in addition.” 22. This proposal and the file was then on 24th of November, 2009 placed before the Deputy Director General who has endorsed the following comments thereon:- “Para 5 of noting 10, and C.L.O. proposal above approved.” 23. As noted above, this file relates to the selection for Assistant Commandants only. Obviously this noting also refers to the same selection. No other record was placed before the Court. On the contrary, it was stated before us that the counter affidavit is premised on this record. 24. In view of the noting dated 18th November, 2009 on which this decision appears to have been taken, it is clearly evident that there is no issue relating to selection of deputy commandant (law) which was put up to the Deputy Director General. Therefore, the averment in the counter affidavit to the effect that the Proficiency Competency Board of those candidates recommended by the FSB for the post of Deputy Commandant (Law) had been approved by the competent authority on 24th November, 2009 is not supported by official W.P.(C) Nos.4390/2010 & 2674/2010 Page 11 of 30 record and is incorrect. 25. Certain further queries which arose during the hearing could not be answered on behalf of the respondents and time was sought to produce further record. It is only in the hearing in the afternoon that the respondents placed file No.RT/0103/LAW OFFICER captioned “RECRUITMENT OF LAW OFFICERS (DY COMDT) – 01/2010 BATCH” before the court. It is unfortunate that this record was not produced before this court in the earlier hearing and appears to be an attempt to deliberately mislead this court. We were not even informed that there is any other record available on the issue. 26. The notings which have been made by the Commandant (JG) on 18th December, 2009 with regard to the present selection and thereafter on this file deserves to be considered in extenso and reads as follows:- -1- “Extract of Advt for the Post of Dy. Comdt (Law)- 01/2010 Batch - 1A -2- 1. Refer to Encl 1A. 2. It is submitted that the advertisement was published for DY. Comdt (Law) as approved by the competent authority. Total 168 applications were received at CGSB. After scrutiny and vetting, 62 call letters were issued. Only 05 candidates qualified PSB (comprising GMAT) Verbal and Non Verbal and stage-1) conducted 10-12 Dec 09 at CGSB Noida. 3. Out of these 05 candidates, 03 have qualified during Final Selection Board (FSB) conducted w.e.f. 13-17 Dec 09 at CGSB Noida as follows: Sl.No. Name Roll No. a. Vaishali Sood DLW/GEN/1592 b. Vikas Saxena DLW/GEN/1451 c. Nagender Singh DLW/GEN/1290 W.P.(C) Nos.4390/2010 & 2674/2010 Page 12 of 30 4. Since these candidates are likely to be inducted at a relatively elevated level (Dy. Comdt) in the Law branch It is opined that their professional competence and suitability, may appropriately be ascertained by the Directorate of Law, prior to sending them for the medicals and issuance of appointment letters. 5. Submitted for perusal and approval please. Sd/- (Brij Kishore) Comdt (JG) DD(Rectt) 18 Dec 09 I.Com: 3953” 27. It is evident from the above that no decision at all with regard to any further testing of the persons who had successfully qualified the final selection board for the post of Deputy Commandant (Law) had been taken even till 18th December, 2009. In fact, it is proposed for the first time then. This matter travelled through various authorities in the chain of command. 28. On the above proposal, we may note here the comments of the Chief Law Officer dated 21st December, 2009 which read as follows:- “It is proposed to conduct a short test and interview for judging professional competence, if approved pl, Sd/- CLO 21 Dec 09” It is clearly evident from the above that the proposal for holding a test or interview for assessing professional competency of the candidates was mooted for the first time only W.P.(C) Nos.4390/2010 & 2674/2010 Page 13 of 30 on the 21st of December, 2009. The legal experts guiding the functioning of the respondents would be expected to know the well settled applicable legal principles with regard to change of selection criteria and method after commencement of the selection process laid down by the Supreme Court in the plethora of judgments noticed herein as well as the consequences of concealment of material records. 29. The record also shows that matter moved very fast on 21st December, 2009. On the very same day, the Deputy Director General proposed to constitute a Board (for the professional competency testing) and recorded the following noting:- “1. Further to note 2, it is proposed to constitute a Board (for Professional Competency Test) comprising of following officers. Sl.No. Rank Name No. a. DIG AKS Chauhan (0161-P) – President b. Comdt. SS Malik (5002-Q) – Member c. Comdt. Donny Michael (0258-L) – Member 2. If approved, the Board is required to assemble on 21 Dec 09, at CGHQ. The BPs along with recommendations to be submitted by 22 Dec 09 to facilitate medical examination of successful candidates. 3. Submitted for perusal and approval please. Braj Kishore COMDT.(JG) 4082.C DD(Rectt) 21 Dec -09 I. Com 3953” 30. The above narration of facts also would show that there was no decision at all to conduct any further test of the candidates till 21st December, 2009. So far as the approval of W.P.(C) Nos.4390/2010 & 2674/2010 Page 14 of 30 this proposal is concerned, the file would disclose that the matter was not placed before any higher authority and the entire decision to conduct the professional competency test and suitability examination has been taken by the Deputy Director General of the service himself. 31. This is also manifested from the fact that in terms of the notified procedure, the Commandant had issued the medical examination forms to the candidates declared selected by the FSB. 32. The present case raises a basic question on well settled first principles. It is trite that the appointing authority has no jurisdiction at all to change or vary the selection process after its commencement. In view of the above, the issue raised before this court is the jurisdiction of the respondents to vary the selection procedure which they had notified to the candidates in the advertisement dated 12th November, 2009, more so after the candidates had undertaken the entire notified selection procedure and had been declared successful. 33. In this regard, reference can usefully be made to the pronouncements of the Supreme Court on the same issue which have been placed before us by learned senior counsel for the petitioner. 34. The law in this issue was laid by the Supreme Court as back as in the judgment reported at 1983 (3) SLR 293, Dr.Vinay Rampal Vs. The State of Jammu & Kashmir & Ors. in the following terms:- W.P.(C) Nos.4390/2010 & 2674/2010 Page 15 of 30 “3. If the petitioner's eligibility for admission to the course for which he had applied is to be judged on the qualifications as set out in the advertisement, it is indisputable that he was eligible for admission under Clause (b)(iv) of the advertisement. Mr. Altaf Ahmed, however drew our attention to item No. 12 in Notification No. 4 of 1981 issued by the Government Medical College at Jammu, which recited that the selection of the candidates will be made strictly in accordance with the instructions issued by the Government. That may be so. But can it be urged that advertisement was issued ignoring Government instruction if any relevant to the subject. In any event such a vague direction that the selection of candidates will be made strictly in accordance with the instructions issued by the Government, in the face of advertisement, leave us cold because any such instruction must be in conformity with some rules and if there be rules the same must be in conformity with the Regulations framed by Indian Medical Council if its jurisdiction extends to Jammu and Kashmir. It was never suggested at any point of time that in issuing the advertisement there was any error. If that be so the College authority including Principal issuing advertisement and inviting applications for admission must be held bound by it unless shown otherwise.xxxxx” 35. In 1992 (2) SLR 379, N.T. Devin Katti Vs. Karnataka Public Service Commission & Ors., statutory rules for selection and appointment were amended after the commencement of the selection process. The Supreme Court set aside the selection which was effected pursuant to the amended rules and held that the selection could have been made only in terms of the rules which were in vogue and applicable at the time of commencement of the selection process. In this regard the observations of the Court deserve to read in extenso and read as follows:- W.P.(C) Nos.4390/2010 & 2674/2010 Page 16 of 30 “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set