1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1652 of 2009 Prajakta Savarkar Shinde r/at Flat No. 1202, Building No.5, Sagar Darshan CHS Ltd., Sector 18, Nerul, Nhavi Mumbai 400 706, District Thane. ...Petitioner v/s. 1. The Union of India through the Secretary to the Department of Atomic Energy, New Delhi. 2. Bhabha Atomic Research Centre, through its Director having office at Central Complex, Trombay, Mumbai-400 085. 3. The Head, HRD, Bhabha Atomic Research Centre, having office at Training School, B.A.RC., Trombay, Mumbai-400 085. ...Respondents Shri Vaibhav Joglekar a/w. A.M. Kulkarni for the Petitioner. Shri G.N. Srinivasan with G. Hariharan & N.R. Prajapati i/b Dr. T.C. Kaushik for Respondents. 2 CORAM:- SWATANTER KUMAR, C.J. AND A.M.KHANWILKAR, J. JUDGMENT RESERVED ON: October 16, 2009. JUDGMENT PRONOUNCED ON: November 19 ,2009. JUDGMENT (PER KHANWILKAR, J): This Writ Petition under Article 226 of the Constitution of India has been filed for declaration that the Petitioner is entitled to be admitted to the one year Orientation Course for Engineering Graduate and Science Post-Graduates (hereinafter referred to as OCES Course for short) for the year 2009-2010 in the Training School to be conducted by the Department of Atomic Energy. The Petitioner has asked for further declaration that the policy/practice of the Respondents in issuing marks allotted to the students by the respective universities as per their Rules and Regulations using different methods (i.e. by taking average of all eight semesters/last six semesters/last two semesters etc.) for deciding the eligibility of such students who apply for admission to the one year Orientation Course for Engineering Graduate in the training schools conducted by the Department of Energy is per se illegal, arbitrary, unjust, discriminatory, unconstitutional, null and void ab-initio and to quash the same. By way of amendment, the Petitioner has sought direction against Respondents 1, 2 3 & 3 to condone the Petitioner’s absence in the aforesaid OCES Course for the year 2009-2010 during the period from 1.9.2009 till the date of her admission including for the examinations (if missed by her during the above period) or to hold such examinations within a reasonable period after the date of her admission. It is further prayed that a writ be issued against Respondents 1 & 2 to withdraw and cancel the impugned undated decision of the Respondent No. 2 holding the Petitioner as not qualified to the one year OCES Course to be conducted by the Department of Atomic Energy. Further, the Respondents 1 & 2 be directed to give admission to the Petitioner for the said post to be conducted at the training schools of the Department of Atomic Energy and particularly at the BARC Training School, Mumbai (depending on her performance in the interview) and pay all the stipend, one time book allowance as mentioned in the letter dated 19.6.2009. The Petitioner has further prayed that record and proceedings of the impugned undated decision of the Respondent No. 2 holding the Petitioner as not qualified to the OCES Course for the year 2009-2010 to be conducted at the BARC Training School be produced and to quash and set aside the same. 2. The above reliefs are founded on the assertion that Petitioner is 4 highly qualified student having cleared the degree of Electrical Engineering in 2005 with an average aggregate marks of 62.93% obtained by her in the Engineering Course. In the first year of the Engineering Course, she secured 64.65%. In the second year 66.81%, in the third year 61.04% and in the fourth year 59.25%. The average of aggregate marks work out to 62.9375%. The Petitioner asserts that she has worked in the software field for about 2 years. It is her case that in response to the publication issued by the Respondents, the Petitioner applied to the OCES Training Course. The said OCES Course is a training scheme formulated by the Central Government for employment of interested qualified persons in various autonomous bodies or institutions formed by it or Government owned companies, after giving such persons the necessary training for one year. It is stated that the other scheme of the Central Government is known as DAE Graduate Fellowships Scheme (“DGFS”), which involves imparting training for two years to the interested persons. The Petitioner, however, is not concerned with the latter scheme. It is stated that on successful completion of OCES Course work at the training school, the Petitioner would become entitled to Post- Graduate Diploma of Homi Bhabha National Institute (“HBNI”), a Deemed University, that would earn her credit towards 5 M.Tech./M.Phil/Ph.D. of HBNI depending on her performance in the above specified threshold. 3. As aforesaid, according to the Petitioner, the Central Government through BARC had published the Information Brochure on its website www.npcil.co.in/hrdbarc/ocese.htm . The said Information Brochure gives detail information about the selection process, which inter alia includes screening of information, written test and interview. Suffice it to notice that the Petitioner made application pursuant to the said invitation given in the Information Brochure. Her application was numbered as 26739 dated 29.03.2009. It is stated that she submitted all the supporting documents including copies of the mark sheets for all the terms of her Engineering Course. On such application, a hall ticket was generated on the website itself. Thereafter, the Petitioner appeared in the written test and was declared successful. The Petitioner then received call to appear for interview to be held on 9.7.2009. According to the Petitioner, she received communication from Respondent No. 2 dated 19.6.2009 informing her that she has been short listed for interview for admission to BARC Training School. It is her case that she appeared for interview on 9.7.2009 and performed well. She also submitted the necessary 6 documents as were required during the interview. Thereafter, she was asked to proceed for medical examination on 10.7.2009 and she was given the medical check up slip for that purpose. The Petitioner further asserts that she along with her mother went to BARC hospital at Trombay, Mumbai and underwent the medical examination conducted by the Medical Officer. According to the Petitioner, she was informed that she was medically fit. The Petitioner further asserts that as per her information, she has secured above 70% marks in the interview and in the overall list her number would have figured at a very high place entitling her to get admission in the BARC Training School, Mumbai. However, she was shocked and surprised to see in the above mentioned website of BARC that she was not selected for the said training course without disclosing any ground. In this background, the Petitioner has rushed to this Court for reliefs which are reproduced hitherto. 4. The Principal grievance of the Petitioner is that although the decision of the Respondents 2 & 3 disqualifying her may seem to be a policy decision but such policy is unjust, arbitrary, unreasonable and unconstitutional and hit by Articles 14 and 21 of the Constitution of India. According to the Petitioner, the Brochure clearly provides that the final 7 selection is solely on the basis of performance in the interview subject to medical examination and since the Petitioner had already cleared the medical test, the Respondents were estopped from re-opening the stage of scrutiny of the Petitioner’s application so as to disqualify her from the admission to the said course. The Petitioner asserts that considering the circumstances, it was amply clear that she was considered as an eligible candidate for being admitted to the said course. In that, she was allowed to appear for written test and thereafter invited for the interview and also sent for medical examination. The Petitioner contends that she had legitimate expectation that she would be selected for admission to the said course having completed written examination, interview and medical examination and particularly having given successful performance in the interview and found to be medically fit during the medical examination. In the alternative, it is contended that different Universities follow different Rules and Regulations for grant of first class as also calculation of percentage of marks whereas the BARC has decided to admit students who have; 1. secured more than 60% marks at the final year of Engineering/Post Gruadate course examination; 2. secured more than 60% marks as average of marks 8 secured at the examinations held for all the four years of Engineering/Post Graduate course examination. 3. Appeared for the final year of Engineering/Post Graduate course examinations (whose results are not out) but have secured more than 60% marks at the examinations held for other years. The Petitioner contends that she has secured average 62.94% marks (i.e. aggregate of her marks for four years of the degree course), as is applied in other cases. Therefore, the Petitioner is eligible to be considered for admission. But, the Respondents were applying the first norm to the Petitioner so as to treat her disqualified on the ground that the Petitioner has secured less than 60% marks in the final year of Engineering. It is not in dispute that in the final year of Engineering the Petitioner has secured only 843 marks out of total 1425 marks, which would be about 59.25%. The Petitioner has challenged this policy/practice of the Respondents being illegal, arbitrary, unjust and discriminatory. The Petitioner further contends that the Information Brochure as published does not disclose any such policy/practice regarding the eligibility criteria for the OCES Course. It is then submitted that before disqualifying the Petitioner, no formal show-cause notice was issued nor she was given opportunity to submit her objections. More so, the authority has not passed any speaking order. Accordingly, the Respondents failed to act fairly, reasonably and 9 objectively. It is also asserted by the Petitioner that the whole conduct of the Respondents is shrouded in secrecy and smacks of colourable exercise of power with a view to give benefit or to favour certain selected candidates who may have secured lesser marks than the Petitioner. The Petitioner also submits that the Respondents having invited the Petitioner for interview after she passed out written examination and then sending her for medical examination, it would necessarily follow that the disqualification, if any, was deemed to have been waived by Respondents 2 & 3. Even for that reason the Respondents were estopped from disqualifying her at this stage. 5. Per contra, Respondents by filing affidavit have refuted the claim of the Petitioner. In the first place, it is stated that the Petitioner has alternative efficacious remedy which the Petitioner ought to have resorted to. The Respondents are relying on the decision of the Apex Court in the case of Kendriya Vidyalaya Sanghatana & anr. v/s. Subhas Sharma etc; reported in All India Service Journal 2002 (2) page 296 which follows the decision of the Constitution Bench of Apex Court in the case of L. Chandra Kumar’s case that the Central Administrative Tribunal is alone the Court of first instance in service matters. According to the 10 Respondents, the issue involved in the Petition concerns recruitment for Civil Post under the Union. The Research Center is a Constituent Unit under the Department of Atomic Energy, a department of Government of India. Therefore, the proper forum for the Petitioner was to approach the Central Administrative Tribunal. According to the Respondents, the Petitioner cannot claim right to be appointed; at best she may claim right to be considered for appointment. However, on examination of her Degree Certificate issued by the concerned University on the basis of her performance in the “final year examination” in the Engineering Degree Course, she was found ineligible for being considered to OCES Course. For, she has secured less than 60% marks in the “final year Engineering Degree Course” of Mumbai University. According to the Respondents, the Petitioner was obliged to send her Degree Certificate at the threshold alongwith her application, in which case her application would have been segregated as she was an ineligible candidate. However, since the Petitioner did not send her Degree Certificate and represented that she has secured more than 60% marks on the basis of her average marks of all the four years of the degree course, she was not only allowed to appear for written-examination but also invited for interview. But the fact that she has secured less than 60% marks which were the qualifying marks, 11 came to notice only upon production of her Degree Certificate. As a matter of fact, the Petitioner is guilty of misrepresentation of material fact. Further, the fact that the Petitioner was invited for interview and also sent for medical examination does not create any right in favour of the Petitioner. The Petitioner was not the only candidate who had appeared in the interview test and also sent for medical, but not finally selected. There are 71 other candidates who were also permitted to appear for the interview and sent for medical examination, but their names did not appear in the final selection list. Therefore, the fact that the Petitioner was permitted to appear for the interview test and also sent for medical examination does not take the matter any further. As a matter of fact, the communication sent to the Petitioner dated 19.6.2009 itself clearly mentions that if her result did not conform to the eligibility criteria, her admission to OCES will stand canceled. It is also mentioned in the said communication that all those who are referred for medical examination need not necessarily be in the final list of selection. Moreover, the Petitioner in the admit card for examination has given a declaration dated 24.5.2009 that she is aware that her application is liable to be rejected at any stage if the information given by her is incomplete or incorrect. Admittedly, the Petitioner gave information that she has secured more than 12 60% marks when infact she had secured less than 60% marks in the final year of degree course conducted by the Mumbai University which alone could be considered as the qualifying degree marks. According to the Respondents, therefore, Petition is devoid of merits and ought to be dismissed. 6. Having examined the pleadings and the documents on record as well as considering the oral submissions, we shall straightway deal with the preliminary objection raised by the Respondents about the maintainability of this Petition. There is no difficulty in following the legal position stated in the two decisions of the Apex Court referred to above. The question is whether it would be a case of recruitment for civil post under the union. The Respondents have stated that the candidates who successfully clear the written test and interview followed by the medical examination are initially selected as trainee for one year OCES Course. Thereafter, a Trainee who secures minimum of 50% aggregate marks on completion of training program, is declared to have passed the course successfully. The successful Trainee is then recruited/absorbed in Grade-C of Scientific Officers in any of the Department of Atomic Energy units. In other words, admission to training course is a prelude and entry 13 point for the recruitment/absorption in Grade-C of Scientific Officers in any of the Department of Atomic Energy units. There is force in this submission. The appointment is not simplicitor to the training course or for completing a Diploma or Degree. But, it is a process of recruitment/absorption of the candidates in Grade ‘C” of Scientific Officers provided he secures minimum 50% aggregate marks on completion of training program and is declared to have passed the course. Thus understood, it is a process of recruitment to a civil post under the Union. On this finding, it would necessarily follow that the remedy for the Petitioner would lie before the Central Administrative Tribunal, which alternative efficacious remedy has not been exhausted by the Petitioner. 7. Even so, since the parties have contested the matter on merits, we would consider their rival position. The main question is whether the Information Brochure throws any light on the qualifying degree or marks by way of eligibility to apply for admission to the said course. We find that the brochure indicates the selection process which provides that the selection of OCES/DGFS is a two steps process, namely, scrutiny to short list candidate followed by interview of the short listed candidates. Scrutiny for the Engineering Disciplines is based on two alternative 14 methods; (a) Cut-off GATE Score is specified as 340 or more for short listing candidates for interview. (b) Written-test to be conducted in each of the seven Engineering Disciplines for short listing candidates for interview. The next step is of selection interviews of short listed candidates which are conducted in BARC Training School and the final selection is solely on the basis of performance in interview subject to medical fitness. In so far as the qualifying degrees and other academic requirements, in particular for the Engineering Discipline, the Information Brochure provides as under: “A. Qualifying Degrees and other Academic Requirements for OCES/DGFS (a) For Engineering Disciplines (codes 21-29): BE/BTech/BSc (Engineering) with a minimum of 60% marks in any of the engineering disciplines mentioned in Table-1 and valid GATE Score in the same engineering discipline as the qualifying degree discipline. Those having qualifying degree in branches like Aerospace, Automobile, Industrial Production, Reliability, Ceramics, Mining, Bio-Medical Electronics/Instruments, Communication, Information Technology, Master of Computer applications, Dyes & Dye Intermediates, Electrochemical, Energy Systems, Oils & Fats, Paints & Varnishes, Petrochemicals, Plastics, Paper, Sugar Technology, Textiles, etc. are not eligible.” (emphasis supplied) 15 8. We are not concerned with the other disciplines in the case on hand. The question is whether the above condition spells out that the candidate should have secured minimum 60% marks at the “final year” of Engineering/Post Graduate post examination or is it possible to construe the same to mean that the candidate should have secured more than 60% marks as “average of marks” secured at the examinations held for “all the four years” of Engineering/Post Graduate Course Examination. On plain language of this stipulation, we have no hesitation in taking the view that the same postulates that the candidate must have passed in Engineering Discipline BE/BTech/BSc (Engineering) and secured minimum of 60% marks in the concerned Engineering Discipline as the qualifying degree discipline. In other words, the candidate must have secured minimum 60% marks in the qualifying examination in the Core Discipline, namely, the “final examination” after which degree is awarded to an applicant in terms of the Statute, Ordinance, Rules and Regulations of the University. Very recently we had occasion to consider a similar provision in the case of Abhishek s/o. Vidya Nand Singh v/s. Hindustan Petroleum Corporation Ltd. In the Writ Petition (L) No. 808/2009 etc. decided on 13th August, 2009. The condition in that case was that the candidates 16 who have 60% and above marks in the qualifying examination would be eligible to apply. The other category of candidates who were permitted to apply were who have appeared for their final year examination by July 2008 and awaiting their results. In so far as the latter category of candidates, it was further provided that on the date of application, the candidate must have secured minimum 60% marks in aggregate till the last semester for being considered eligible to apply. There is similarity in the sweep of the two provisions. Notably, in that case the Corporation took a plea which is now being pursued by the Petitioner herein. The Corporation had argued that for considering the eligibility and reckoning the marks secured by the candidate at the qualifying examination, the aggregate of “all the semesters” will have to be taken into account and not the marks secured by the candidate at the “final year” of the degree course. This contention has been negatived on two counts. Firstly, that the stipulation in the brochure did not permit such interpretation and Secondly because once a degree is issued by the University in terms of the Statute, Ordinance, Rules and Regulations of the University, then it is not open for the employer to impose any other limitation which would frustrate the statutory force of that degree, unless there was unambiguous and clear stipulation in the advertisement inviting applications for employment of 17 candidates who not only have the degree but their entire course percentage of marks is above 60% which will be counted for determining the percentage of marks specified in that advertisement. The Court went on to observe that the expression “qualifying examination” is within the power, ambit and jurisdiction of the University and that is what should be treated as final examination of the degree course. Besides, what should be treated as the qualifying examination is to be ascertained and defined by none other than the University itself. We had occasion to examine the Ordinance and Regulations of Mumbai University and on conjoint reading thereof, we have held that the Scheme of the Statute of Mumbai University clearly shows that it is the marks obtained in the Seventh and Eighth Semesters which are determinative of issuance of degree of Bachelor of Engineering in all the Core Disciplines; and, therefore, 60% marks referred to in the Brochure in terms of advertisement ought to relate to the “final examination” of the degree course in respect of candidates who have passed the qualifying examination. The position expounded in the said decision would answer the issue raised on behalf of the Petitioner. 9. Considering the plain language of the stipulation in the Information 18 Brochure published by the Respondent in the present case, the only meaning that can be ascribed thereto is that the candidate must have secured minimum of 60% marks in any of the Engineering Disciplines at the qualifying or “final degree examination.” In the present case, the Petitioner has secured only 843 marks out of total 1425 marks at the final examination which in terms of percentage would work out to be less than 60%. The degree issued to the Petitioner is on the basis of the said marks and not on the basis of average of all the semesters of the degree course. The Petitioner has erroneously assumed that the average marks secured in all the eight semesters of the degree course will have to be taken into account for determining her qualifying marks, which stand is not consistent with the notification inviting applications nor with the extant Rules and Regulations of the Mumbai University. 10. To get over this difficulty, the Petitioner alternatively contended before this Court that the practice adopted in different Universities for considering the qualifying examination marks is different. That position is evidenced from the chart annexed as Exhibit G to the Petition giving the practice followed by 8 different Universities. Indeed, every university adopts different pattern for considering the marks obtained in the 19 qualifying examination. The Respondents have clearly stated that the Respondents would consider the marks obtained by the candidate at the qualifying examination/degree examination which are considered by the Examining University for the award of its degree and class. Further, this interpretation and approach is applied uniformly and consistently without any exception to any of the candidates. We find no difficulty in upholding the stand of the Respondents which is consistent with recognizing the marks given by the University concerned in the degree examination for the award of its degree and class to the concerned candidates. There is substance in the stand taken by the Respondents that when the student appears for the University examination, his concern is to prepare for examination keeping in mind the Rules of their examining University and not based on the criteria known to him or in anticipation of different interpretation of marks that his/her prospective employer may choose to apply. In our view the Respondents have not only applied uniform principle to all the candidates but have also given effect to the statutory force of the degree. 11. Suffice it to observe that the stipulation in the Information Brochure regarding the qualifying degrees and minimum marks does not 20 permit us to take the view that the advertisement unambiguously