24 June 2019


Judgments

Central Administrative Tribunal

Ashwani Rana and Ors. Vs. Govt. of NCT of Delhi and Ors.

MANU/CA/0655/2017

22.09.2017

Service

It is settled law that, rules once framed, cannot be modified by executive orders

The Applicants were candidates for the post of Head Constable (Male) in Transport Department, for which selection process was initiated by the Respondents, vide Advertisement. They were belonging to the OBC category. They appeared in the written examination. The result of the same was declared in which the applicants obtained first and second rank in the OBC category. Vide letter dated 9th June, 2016, which the applicants claim was received by them on 13th June, 2016, they were informed that, physical test was scheduled for 15-16 June, 2016. The applicants appeared for the physical test on the said dates. However, they were shocked to know that, besides chest and height measurement they were required to participate in a race event in which they had to cover 800 mts in 200 seconds. The applicants claim that, they objected to this by saying that this was not mentioned in the advertisement. However, they were told to participate in the same, failing which they would be excluded from the selection process. They were also told that, instruction regarding the race event had been uploaded on the website of the respondents and the candidates were supposed to peruse the same. The applicants participated in the race event but could not succeed in the same. They submitted a representation to the Respondents in which they stated that the race event was illegal and that the selection could not be declared based on the same.

Rules once framed, cannot be modified by executive orders. Nothing can be added or taken away from the rules by issue of executive orders. While gaps in the Recruitment Rules (RRs) can be covered by issue of executive orders but these instructions must be issued in exercise of Executive Power of the State under Article 162 of the Constitution.

The RRs for the post provided that, the candidates should be of sound health, besides laying down the requirements of height & chest measurement etc. It has also been laid down that, candidates should be free from defect/deformity/disease vision 6/6 without glasses both eyes free from colour blindness. Thus, besides prescribing other requirements, the RRs only say that, the candidate should possess sound health. According to the Respondents, since the RRs did not prescribe how sound health of the candidates has to be judged, taking a cue from the RRs of certain other similar posts, DSSSB introduced the race event, which has been questioned in this OA. From this submission, it is clear that RRs of several other posts quoted by the respondents themselves, do prescribe physical endurance test but the same was missing from the RRs of the posts in question. Thus, it is evident that, Framers of the Rules in their wisdom decided not to incorporate physical endurance test involving race event in the RRs. Moreover, even if the contention of the Respondents that not prescribing race event in the RRs was an inadvertent lapse which left a gap in the RRs, is accepted then this gap could have been filled by issue of executive instructions by the Government of NCT of Delhi. The examining body like the DSSSB on their own could not have prescribed this test. In doing so, they have clearly traversed beyond their jurisdiction and usurped the powers vested in the State Govt. Proper course of action would have been to bring existence of this gap in RRs to the notice of the State Government and request them to issue appropriate instructions. Further, this should have been done prior to commencement of the selection process so that instructions issued could have been duly notified to the candidates in the advertisement issued for the post. Prescribing this test after commencement of the selection process, did amount to changing the rules of the game mid way and was impermissible. Hence, the action of the respondents has not legally sustainable.

Physical endurance test of this nature demands much higher level of fitness than merely being of "sound health". When Framers of RRs did not consider it necessary for the candidates to possess fitness level more than "Sound health" for the post, there was no reason for DSSSB to introduce it on their own. It cannot be accepted that, DSSSB was only laying down a "benchmark" and not changing the rules of the game. Benchmarks could have been laid down only for attributes prescribed in the RRs. A new criterion of selection could not have been introduced by DSSSB.

The action of the Respondents was blatantly illegal and there cannot be any estoppel against law. An illegality committed by the Respondents can be questioned at any stage. Apex Court in the case of Damir Ch. Marak Vs. The State of Meghalaya and Ors., held that, The Petitioner may be barred from filing the writ petition after he had participated in the selection process on the ground that, the result of the selection process is not palatable to him, but the writ petitioner is not barred, even if he participated in the selection process, by principle of estoppels or acquiescence in questioning as to the legality or otherwise of the recommendations of the candidates as there cannot be estoppels against the law."

Thus, Court concluded that, the action of the Respondent DSSSB in prescribing a race event for judging suitability of the candidates for the post in question was against law and beyond their jurisdiction. The applicants by mere participation in the selection process were not estopped from questioning the same since the action of the Respondents was not sustainable under law. Applications are allowed and Respondents are directed to prepare the merit list of selection by ignoring the race event.

Relevant

Damir Ch. Marak Vs. The State of Meghalaya and Ors., [WP(C) No. 61/2014 decided on 20.05.2015]

Tags : Selection Race event Legality

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