Narendra Kumar Sahoo vs Union Public Service Commission
- Court
- Central Administrative Tribunal
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1576/2016
Reserved on: 14.08.2026
Pronounced on: 02.09.2026
Hon’ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon’ble Dr. Sumeet Jerath, Member (A)
Narendra Kumar Sahoo,
Aged about 48 years,
S/o Late Sh. Padma Charan Sahoo
Posted as Cypher Assistant (Attache w.e.f. 28.01.16)
of IFS (B) High Commission of India, 31 Grange Road,
Singapore,
R/o 54-H Stevens Road, Singapore, and also at
148(HIG), K-6 Kalinga Vihar, Bhubaneswar,
Odisha, India - Applicant
(By Advocate: Mr. Anil Singal)
VERSUS
1. Union of India
Through its Foreign Secretary,
Ministry of External Affairs,
South Block, New Delhi – 110011
2. Union Public Service Commission,
Through its Secretary,
Shahjahan Road, New Delhi
3. Sh. Amit Kumar Gupta,
Section Officer, MEA,
4. Sh. Abhinav Kumar,
Section Officer, MEA - Respondents
(Respondents No. 3 & 4 to be served through Respondent No.1)
(By Advocates: Mr. Amit Yadav & Mr. SN Verma)
2026.09.02
LALIT
12:54:18
GOSAIN
+05'30'
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.198/2017
Reserved on: 14.01.2026
Pronounced on: 04.02.2026
Hon’ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon’ble Dr. Sumeet Jerath, Member (A)
Balwan Singh Mehta, S/o Sh. Prem Raj, Lab. Supdt. In Northern Railway,
Central Hospital, New Delhi, Aged about 47 years, R/o 158/16, Railway Colony, Basant Road, New Delhi-55 - Applicant
(By Advocate: Mr. Anil Singal)
VERSUS
1. Union of India,
Through its Secretary,
2. Ministry of Railways, Rail Bhawan, New Delhi General Manager (P),
3. Northern Railway, Baroda House, New Delhi Railway Recruitment Board (Allahabad)
Through its Chairman,
4. DRM Office Complex, Nawab Yusuf Road, Allahabad DRM (P)
5. Northern Railway, Lucknow, UP Mahesh Chandra Bhimavad,
Working as Lab. Supdt. Sub Divisional Railway Hospital, Itarasi, MP
6. Mahavir Pandit, working as Lab. Supdt.,
Northern Railway Divisional Hospital, Lucknow, UP
7. Kulbhushan Doval, Working as Lab. Supdt.,
Northern Railway Divisional Hospital, Lucknow, UP - Respondents
(Mr. Pradeep Kr. Sharma, Mr. Piyush Gaur for respondents 1 to 4, Mr.
Somnath Bhattacharya with Mr. Pradeep Tripathi for respondents 4 & 5
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ORDER
Ms. Harvinder Kaur Oberoi:
Brief Facts of the Case are that the applicant joined the
Ministry of External Affairs (MEA) on 10.07.1998 as a Direct Recruit
(DR) Cypher Assistant (CA) of Indian Foreign Service, Branch ‘B’,
through the Assistant’s Grade Examination, 1996. Respondent No. 3
was appointed in the MEA on 29.08.2008 as a Direct Recruit
Assistant of IFS (B), while Respondent No. 4 was appointed on
08.05.2006 as a Direct Recruit Assistant of IFS (B).
2. The promotional post of Section Officer was to be filled through
a Limited Departmental Competitive Examination (LDCE) conducted
by Respondent No. 2. A notification dated 15.09.2012 was issued for
holding the LDCE for the vacancies pertaining to the years 2009,
2010 and 2011. Under the said notification, candidates having four
years of regular service as on 01.07.2011 were eligible to participate
in the LDCE-2011, and corresponding eligibility criteria were
prescribed for LDCE-2009 and LDCE-2010. The applicant, being
eligible, applied for participation in the LDCE for the years 2009–
2011. Respondent Nos. 3 and 4 also applied, despite allegedly not
fulfilling the prescribed eligibility conditions.
3. Initially, the candidature of Respondent Nos. 3 and 4 was
rejected vide order dated 13.02.2013. However, subsequently, they
were permitted to appear in the LDCE. They were thereafter declared
selected vide the Final Merit List dated 24.07.2013 for LDCE-2011
and LDCE-2009. According to the applicant, Respondent Nos. 3 and
4 were awarded marks on the basis of ACRs/APARs relating to
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periods during which they had not completed the requisite qualifying
service and had not been borne in the relevant feeder grade. The
applicant contends that such marks were fictitious, notional and/or
otherwise inadmissible and that, after exclusion of such marks, the
private respondents did not meet the prescribed qualifying
benchmark.
4. The applicant further contends that scrutiny of the final
results revealed that several candidates, including Respondent Nos. 3
and 4, were included in the final merit lists despite allegedly being
ineligible to appear in the examination. In the case of Respondent No.
3, Nadeem Ahmad Khan, the applicant states that although he had
joined as a Direct Recruit Assistant on 18.08.2008, he had only
about two years and ten months of qualifying service as on the
relevant cut-off date. Similarly, Respondent No. 4, Vinod Kumar, who
had joined as a Direct Recruit Assistant on 16.04.2008, allegedly had
only about three years and two months of qualifying service. The
applicant also refers to other candidates whose qualifying service was
allegedly less than the prescribed four years.
5. It is the applicant’s case that, under the applicable
instructions, the private respondents could have earned only a
limited number of marks on the basis of their qualifying
ACRs/APARs. According to the applicant, Respondent Nos. 3 and 4
could score a maximum of 36 marks from their qualifying
ACRs/APARs, whereas the qualifying benchmark prescribed for
service records was 40 out of 100 marks. The applicant accordingly
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contends that they could not have qualified on the basis of their
legitimately earned service-record marks.
6. The applicant further relies upon the instructions issued by
the Department of Personnel and Training (DoPT) governing the
evaluation of ACRs/APARs and the award of marks for different
gradings. According to the applicant, the applicable methodology
contemplated award of marks only for the relevant period during
which a candidate was actually borne in the feeder grade and had
earned the concerned service records. The applicant contends that
marks could not legally be awarded for notional periods during which
the concerned candidate had neither been appointed to nor borne in
the relevant grade and, consequently, had not earned any ACR/APAR
for such period.
7. The applicant states that, upon applying the prescribed
methodology, his own qualifying service records entitled him to 75
marks, with his total marks being 372. In contrast, according to the
applicant, Respondent No. 3 was shown as having obtained 36 marks
from qualifying ACRs/APARs but was allegedly awarded an
additional 64 marks, thereby taking his total to 100 marks in service
records and 380 marks overall. The applicant contends that, after
excluding the allegedly fictitious or excess marks, Respondent No. 3
would have secured only 316 marks and would not have ranked
above the applicant.
8. The applicant further relies upon the result and cut-off marks
for LDCE-2009 to 2011 and submits that, on a proper calculation of
the marks actually earned by the candidates, the applicant ought to
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have been placed above the relevant candidates in the final merit
position. It is therefore contended that the applicant was deprived of
his rightful selection and promotion to the post of Section Officer on
account of the alleged erroneous grant of marks to the private
respondents.
9. The applicant states that Respondent Nos. 3 and 4 were
consequently selected and promoted to the post of Section Officer.
Reliance has also been placed upon the Seniority List of Grade IV
General Cadre (Assistants) of IFS (B) as on 01.01.2012, issued vide
order dated 16.01.2012, to demonstrate the respective dates of
joining of the applicant and the private respondents.
10. The applicant’s grievance, therefore, is that the MEA/UPSC
ought to have considered only eligible candidates and assessed their
performance on the basis of the written examination and the service
records actually earned by them during the relevant period in the
feeder grade. According to the applicant, there was no justification
for awarding any fictitious, notional, grace or bonus marks for
periods during which a candidate was not even borne in the relevant
grade and had consequently not earned any ACR/APAR.
11. Learned counsel for the applicant submits that the applicant
was fully eligible to participate in the LDCE for promotion to the post
of Section Officer, having fulfilled the prescribed requirement of
qualifying service, whereas Respondent Nos. 3 and 4 did not satisfy
the requisite eligibility conditions. It is submitted that their
candidature was initially rejected vide order dated 13.02.2013
precisely on account of their failure to fulfil the prescribed eligibility
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criteria, but they were subsequently permitted to participate in the
examination without any lawful justification.
11. Learned counsel submits that the subsequent inclusion of
Respondent Nos. 3 and 4 in the final merit list and their selection
was rendered possible only because they were allegedly granted
marks on the basis of ACRs/APARs relating to periods during which
they were not borne in the relevant feeder grade. Such reports,
according to learned counsel, could not constitute qualifying service
records for the purpose of the LDCE. It is argued that a candidate
cannot be awarded marks for an ACR/APAR for a period during
which the candidate was not holding the post or grade in which such
service was required to be rendered.
13. Learned counsel further submits that the applicable DoPT
instructions were intended to ensure uniformity and transparency in
the assessment of service records and to prevent manipulation or
human error in the process of selection and empanelment. The
respondents were therefore required to calculate marks strictly on
the basis of the ACRs/APARs legitimately earned by the candidates
during the prescribed period. According to learned counsel, the grant
of marks for non-qualifying or notional periods resulted in an
artificial enhancement of the marks of Respondent Nos. 3 and 4 and
materially affected the final merit position.
14. Learned counsel submits that Respondent Nos. 3 and 4 could
not have obtained the prescribed benchmark on the basis of their
actually earned and qualifying ACRs/APARs. It is argued that, after
excluding the allegedly inadmissible marks, their total marks would
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fall below the level at which they could have been selected, whereas
the applicant, on the basis of his legitimately earned marks, would
have secured a position above the private respondents.
15. Learned counsel further submits that in a competitive
examination every candidate is required to compete on an equal
footing and cannot be given credit for something which he or she has
not earned. By way of analogy, it is submitted that a candidate
cannot be awarded marks for an examination question which he or
she has not attempted; similarly, a candidate cannot be awarded
marks for an ACR/APAR pertaining to a period during which the
candidate was not borne in the relevant grade and had not rendered
the qualifying service.
16. It is accordingly contended that the erroneous award of
additional or notional marks to Respondent Nos. 3 and 4 directly
prejudiced the applicant and deprived him of his rightful place in the
final merit list. Learned counsel submits that, but for the allegedly
illegal award of such excess marks, the applicant would have been
selected and promoted to the post of Section Officer in preference to
the private respondents.
17. Learned counsel therefore submits that the selection and
promotion of Respondent Nos. 3 and 4, having been made on the
basis of allegedly inadmissible service-record marks and despite their
alleged lack of requisite eligibility, are unsustainable in law and are
liable to be set aside, with consequential relief being granted to the
applicant in accordance with his rightful merit position.
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18. Counsel for the respondents has filed the counter affidavit and
submitted that the applicant has challenged the final result of the
Combined Section Officers’/Stenographers’ (Grade ‘B’/Grade ‘I’)
Limited Departmental Competitive Examination (SO/PS LDCE) for
the years 2009, 2010 and 2011, declared by the Union Public Service
Commission (Respondent No. 2) on 24.07.2013. It is submitted that
the examination was conducted by Respondent No. 2 in December
2012 for making additions to the Select Lists for the recruitment
years 2009, 2010 and 2011. The applicant has also challenged the
eligibility of certain candidates who appeared in the said LDCE.
19. Learned counsel submits that, under Rule 13(2) of the Indian
Foreign Service ‘B’ (Recruitment, Cadre and Seniority) Rules, 1964,
the Select List for promotion to Integrated Grades II and III of the
General Cadre of IFS ‘B’ is prepared in the prescribed manner,
wherein 33-1/3% of the promotion quota is earmarked for persons to
be promoted on the basis of the SO/PS LDCE conducted by the
Commission, while the remaining promotion quota comprises
persons promoted on the basis of seniority, subject to rejection of
unfit officers, who have rendered not less than eight years of
approved service in the relevant grade or grades.
20. It is further submitted that, in terms of the applicable rules
and the notification dated 15.09.2012, candidates were eligible to
appear in the SO/PS LDCE subject to fulfilment of the prescribed
conditions relating to approved and continuous service. A candidate
was required to have not less than five years of approved and
continuous service in Grade IV of the General Cadre, Grade II of the
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Cypher Sub-cadre or Grade II of the Stenographers’ Cadre of the
Indian Foreign Service, Branch ‘B’, or in two or all of the aforesaid
grades, as the case may be. In the case of candidates appointed to
the said grades on the basis of the result of a Competitive
Examination, including a Limited Departmental Competitive
Examination, such examination was required to have been held not
less than five years before the crucial date and the candidate was
required to have rendered not less than four years of approved and
continuous service in the relevant grade as on the crucial date.
21. Learned counsel submits that Respondent No. 1 had indented
vacancies to be filled through the LDCE for addition to the Select
Lists for the years 2009, 2010 and 2011. Respondent No. 2 thereafter
conducted the examination in December 2012 and, after taking into
account the marks obtained by the candidates who appeared in the
examination and evaluating their service records, including
ACRs/APARs, declared the final result on 24.07.2013. It is submitted
that Respondent No. 2 selects candidates for inclusion in the Select
List for the recruitment year for which the examination is conducted.
22. As regards the applicant’s challenge to the correctness of the
final results declared by Respondent No. 2 for LDCE-2011, LDCE-
2010 and LDCE-2009, learned counsel submits that the matter is
directly related to Respondent No. 2 and, therefore, the said aspect is
required to be explained by Respondent No. 2. However, insofar as
the applicant’s challenge to the eligibility of the candidates appearing
in the LDCE is concerned, it is submitted that the candidates were
eligible in terms of the applicable rules and the conditions contained
10
in the notification dated 15.09.2012. The claim of the applicant in
this regard is stated to be wrong, misconceived and misleading.
23. With regard to the specific averments made by the applicant,
learned counsel submits that the contents relating to the applicant’s
and private respondents’ appointment and service particulars are
matters of record and require no further reply. As regards the
averments concerning the eligibility of Respondent Nos. 3 and 4 and
their participation in the LDCE, the same are denied as misleading,
wrong and false, except to the extent that the matters are borne out
from the record. It is reiterated that the candidates appearing in the
LDCE were required to fulfill the prescribed eligibility conditions
relating to approved and continuous service, namely, not less than
five years of approved and continuous service in the relevant feeder
grade or grades, subject to the specific condition applicable to
candidates appointed through Competitive Examination or Limited
Departmental Competitive Examination that such examination
should have been held not less than five years before the crucial date
and that the candidate should have rendered not less than four years
of approved and continuous service in the relevant grade as on the
crucial date.
24. Learned counsel submits that the averments made by the
applicant concerning the correctness of the final results, evaluation
of ACRs/APARs and the marks allegedly awarded to Respondent Nos.
3 and 4 relate essentially to Respondent No. 2 and, therefore, do not
require any separate reply from the answering respondents. It is
submitted that the applicant’s allegations regarding the grant of
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fictitious, notional, grace or excess marks are denied and that the
final result was declared by the competent authority after following
the applicable procedure.
25. Learned counsel further submits that the allegations made by
the applicant regarding the selection and promotion of Respondent
Nos. 3 and 4 are also denied as misleading, wrong and false, except
to the extent that the facts are matters of record. It is reiterated that
the candidates who appeared in the LDCE were required to satisfy
the eligibility conditions prescribed under the applicable rules and
the notification dated 15.09.2012, including the requirement of
approved and continuous service in the relevant grade or grades.
26. It is further submitted that the present Original Application is
also barred by limitation and has been filed merely as an
afterthought. Learned counsel submits that the applicant has failed
to establish any legally enforceable right warranting interference by
this Tribunal with the final result declared on 24.07.2013.
27. Learned counsel therefore submits that, in view of the
aforesaid facts and submissions, the applicant has failed to make out
any case for grant of relief. It is accordingly prayed that the Original
Application be dismissed, with costs, in favour of the replying
respondents.
28. Counsel for Respondent No. 2 (UPSC) has filed the counter
affidavit and submitted that the allegations made by the applicant
are false, wrong and misleading and are therefore denied. It is
specifically denied that any ineligible candidate was permitted to
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appear in the examination or that any illegal appointment was made.
It is submitted that the ACRs/APARs of the candidates were assessed
strictly in accordance with the prevailing Office Memoranda and
guidelines issued by the DoP&T.
29. Learned counsel further submits that the present Original
Application is barred by limitation and laches. It is pointed out that
the final result of the SO/Steno Grade LDCE for the years 2009,
2010 and 2011 was declared on 24.07.2013, whereas the present OA
was filed only in April 2016. It is also submitted that the applicant
had earlier filed OA No. 88/2015 on the same issue, which was
subsequently sought to be withdrawn by filing MA No. 929/2016.
According to the respondents, the earlier OA was filed without any
sustainable legal ground and the present OA is merely an
afterthought and is liable to be dismissed on the ground of delay and
laches alone.
30. With regard to the eligibility of Respondent Nos. 3 and 4,
learned counsel submits that the applicant’s contention that the
private respondents were ineligible to participate in the LDCE is
misconceived. It is submitted that Respondent No. 3 was a Direct
Recruit through the Combined Graduate Level Examination (CGLE)-
2005 conducted by the Staff Selection Commission, while
Respondent No. 4 was a Direct Recruit through CGLE-2003. Under
Rule 3 of the applicable Examination Rules, candidates were required
to have the prescribed period of approved service in the relevant
grades. The proviso to the Rule further provided that, in the case of
candidates appointed to the relevant grades through a Competitive
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Examination, including a Limited Departmental Competitive
Examination, such examination should have been held not less than
five years before the crucial date and the candidate should have
rendered not less than four years of approved and continuous service
in the relevant grade on the crucial date.
31. Learned counsel submits that Respondent No. 3, along with
other similarly situated candidates, was initially considered for
rejection but was subsequently found eligible for LDCE-2011 upon
proper application of the proviso to Rule 3. Since Respondent No. 3
had been recruited through CGLE-2005, conducted in June 2006,
the examination had been held more than five years prior to the
crucial date of 01.07.2011 and he had also completed the requisite
period of approved and continuous service. It is further submitted
that the candidature of Respondent No. 4 was never rejected by the
Commission.
32. As regards the allegation that Respondent Nos. 3 and 4 were
awarded fictitious, notional or excess marks, learned counsel
categorically denies the same. It is submitted that the assessment of
service records was carried out strictly in accordance with the
applicable rules and prevailing guidelines. The Commission
considered the relevant ACRs/APARs of the candidates and there
was no grant of fictitious or illegal marks. It is specifically denied that
the applicant had secured higher marks than Respondent Nos. 3 and
4 so as to entitle him to selection.
33. Learned counsel further submits that the calculation of
approved service made by the applicant is contrary to the applicable
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Recruitment Rules. The table prepared by the applicant is based
upon his own assumptions and an incorrect method of calculating
the period of approved service and, therefore, has no evidentiary or
legal sanctity. In the case of Respondent No. 3, ACRs for the years
2008-09, 2009-10, 2010-11 and 2011-12 were considered, whereas
in the case of Respondent No. 4, ACRs for the years 2006-07, 2007-
08, 2008-09 and 2009-10 were taken into consideration.
34. Learned counsel submits that the assessment of ACRs/APARs
for the SO/Steno Grade LDCE is undertaken by an Assessment
Board constituted by the Commission in accordance with its
established internal guidelines. The said procedure has been
consistently followed for several years and is distinct from the
procedure adopted by Departmental Promotion Committees for
promotions through the seniority quota. Where reports for less than
five years are available for an otherwise eligible candidate, the marks
are proportionately increased to provide an assessment equivalent to
the prescribed five-year period. Such proportionate assessment is
intended to ensure a level playing field and is based upon the
underlying principles contained in the DoP&T instructions, including
the OM dated 10.04.1989.
35. It is further submitted that, during assessment of the service
records, the performance of each candidate is adjudged by the
Assessment Board on the basis of the entries contained in the
available ACRs/APARs. The average grading obtained from the
available reports is proportionately increased to arrive at an
assessment corresponding to the requisite period. Thus, an eligible
15
candidate cannot be penalised merely because complete service
records for the entire prescribed period are not available.
36. Learned counsel also submits that the applicant has
incorrectly relied upon the DoP&T guidelines relating to numerical
grading in ACRs/APARs and has sought to apply them for calculating
marks in the present LDCE. The Commission follows its own
established guidelines for allocation of marks to candidates
recommended through the SO/Steno Grade LDCE, through an
Assessment Board constituted for the purpose. The guidelines relied
upon by the applicant, including the DoP&T Order dated 20.05.1972,
have no application to the assessment methodology adopted by the
Commission in the present examination.
37. It is further submitted that the applicant has also omitted
certain ACRs from his calculations, thereby presenting an incomplete
and incorrect picture of the assessment actually undertaken by the
Assessment Board. The marks alleged by the applicant to have been
awarded to the private respondents as fictitious or bonus marks
were, in fact, arrived at through the prescribed assessment
methodology and after consideration of the available service records.
38. Learned counsel categorically denies that any illegal
consideration was made or that any grace, bonus, fictitious or excess
marks were awarded to Respondent Nos. 3 and 4 or to any other
candidate. It is reiterated that both private respondents were directly
recruited as Assistants through the respective CGLE examinations
and were eligible to participate in the LDCE in accordance with the
extant rules.
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39. Learned counsel further submits that the allegations contained
in the grounds of the Original Application, including the allegation of
violation of Articles 14 and 16 of the Constitution, are unfounded. No
extra credit or illegal advantage was granted to any candidate and
the assessment and selection were carried out uniformly in
accordance with the applicable rules and guidelines. Consequently,
the selection of the candidates cannot be said to be legally vitiated.
40. It is also submitted that the applicant had earlier filed OA No.
88/2015, which was subsequently withdrawn without intimation to
the answering respondent. The present OA, therefore, does not
disclose any valid ground for interference and the reliefs sought by
the applicant are devoid of merit.
41. Learned counsel for Respondent No. 2 accordingly submits
that the Original Application is barred by limitation and laches, apart
from being devoid of merit on facts and law, and deserves to be
dismissed with costs.
42. Counsel for the applicant has filed the rejoinder and submitted
that the objections raised by the respondents are wrong and denied.
Learned counsel submits that the applicant has duly explained the
delay, if any, in filing the present Original Application and has also
filed an appropriate application seeking condonation of delay. It is
further submitted that the applicant has nowhere stated that he had
submitted any representation against the Final Merit List dated
24.07.2013. Rather, the applicant has specifically stated in the
Original Application that he has no effective remedy available to him
under the relevant service rules.
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43. Learned counsel further submits that the applicant has not
challenged the recruitment process as such. The grievance of the
applicant is confined to the alleged illegalities committed by the
respondents in considering and selecting candidates who, according
to the applicant, were ineligible to participate in the LDCE, which
consequently resulted in the non-selection of the applicant despite
his eligibility and merit.
44. With regard to the service particulars of Respondent Nos. 3
and 4, learned counsel submits that the stand taken by the
respondents is incorrect and that the averments made in the Original
Application are reiterated. It is submitted that the respondents have
wrongly disputed the dates of appointment of Respondent Nos. 3 and
4 as Direct Recruit Assistants in the MEA.
45. Learned counsel further submits that a Direct Recruit cannot
count any period of service prior to his actual appointment to the
relevant grade for the purpose of determining eligibility for
participation in the LDCE. It is argued that service rendered prior to
appointment to the feeder grade cannot be treated as service in that
grade. Otherwise, an employee appointed as a Direct Recruit through
CGLE-2003 or CGLE-2005 could claim the benefit of service even for
a period prior to his actual appointment, which would be legally and
factually untenable.
46. As regards the eligibility of Respondent Nos. 3 and 4, learned
counsel submits that the contents of the counter affidavit are
incorrect and are denied. It is contended that it is an admitted
position that the candidature of Respondent No. 3 was initially
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rejected by the UPSC and that a similar position existed in respect of
Respondent No. 4. The applicant reiterates that the private
respondents did not satisfy the prescribed eligibility conditions for
participation in the LDCE.
47. Learned counsel further submits that the respondents have
failed to explain the basis on which marks were awarded to
Respondent Nos. 3 and 4 for periods during which they had not
actually earned any ACRs/APARs in the relevant grade. According to
learned counsel, a candidate cannot be credited with service records
for a period during which he or she was not borne in the grade and
consequently could not have earned any such report.
48. It is further submitted that the terms of the notification
applicable to MEA candidates prescribed “approved and continuous
service”, whereas the respondents have sought to rely merely upon
the concept of “approved service”. Learned counsel contends that the
date of appointment to a grade cannot be treated as a notional date
for the purpose of satisfying the requirement of physical service
experience in that grade. Actual service in the relevant grade is
necessary for earning the requisite service records and for
determining eligibility for the LDCE.
49. Learned counsel submits that the evaluation of service records
for the SO/Steno Grade LDCE is governed by the applicable
instructions and Office Memoranda issued by the DoP&T. The
eligibility to earn ACRs/APARs is necessarily linked to the actual
date of appointment to the grade which makes the candidate eligible
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for the LDCE. A candidate cannot earn an ACR/APAR for a period
during which he or she was not even borne in the relevant grade.
50. Learned counsel accordingly submits that Respondent No. 2
could not have lawfully awarded fictitious, notional, grace, extra or
bonus marks on the basis of unearned or non-existent ACRs/APARs
relating to periods during which Respondent Nos. 3 and 4 were not
borne in the relevant grade. The subsequent assessment and award
of such marks, according to learned counsel, materially affected the
final merit position and resulted in the applicant being deprived of
selection.
51. Learned counsel further submits that the replies furnished by
the respondents to the grounds raised in the Original Application are
vague and evasive. It is contended that the respondents have failed to
specifically and satisfactorily answer the applicant’s grounds
regarding the alleged award of excess or notional marks and the
eligibility of the private respondents. Consequently, the applicant
reiterates the grounds raised in the Original Application and submits
that the same remain unanswered and uncontroverted.
52. Learned counsel finally submits that the objections and
submissions made by the respondents are devoid of merit and that
the averments and grounds raised in the Original Application may be
read as reiterated and reaffirmed. It is therefore prayed that the
Original Application be allowed and appropriate relief be granted to
the applicant in accordance with law.
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53. Counsel for respondent No.1 has filed the additional affidavit
and submitted that the contents of the corresponding paragraphs of
the rejoinder are misleading, wrong and false, except to the extent
that they are matters of record, and the contents of the earlier reply
filed on behalf of the respondents are reiterated. It is submitted that
the present proceedings constitute the second round of litigation by
the applicant before this Tribunal, the earlier OA No. 88/2015 having
been dismissed as withdrawn with liberty. Learned counsel submits
that the applicant has primarily challenged the final results of the
Limited Departmental Competitive Examination (LDCE) for the years
2009, 2010 and 2011 declared by the UPSC, principally on the
grounds that Respondent Nos. 3 and 4, namely Shri Amit Kumar
Gupta and Shri Abhinav Kumar, were allegedly ineligible to appear in
the examination; that their candidatures were initially rejected but
they were subsequently permitted to appear; and that they were
selected by awarding fictitious, extra or notional marks on the basis
of unearned or non-existent ACRs/APARs.
54. In response, learned counsel reiterates the earlier stand of the
respondents and submits that, under Rule 13(2) of the Indian
Foreign Service 'B' (RCSP) Rules, 1964, a prescribed portion of the
promotion quota is required to be filled through the SO/PS LDCE
conducted by the UPSC, while the remaining quota is to be filled on
the basis of seniority subject to fitness. It is submitted that the
notification dated 15.09.2012 prescribed the eligibility conditions for
candidates appearing in the LDCE for the years 2009, 2010 and
2011. For Category II relating to the Section Officer's Grade in the
Ministry of External Affairs, a candidate was required to have not
21
less than five years' approved and continuous service in the
prescribed feeder grades, subject to the proviso applicable to
candidates appointed to such grades through a competitive
examination, including an LDCE.
55. Learned counsel submits that Respondent No.3, Shri Amit
Kumar Gupta, had joined the Ministry on the basis of the SSC
Graduate Level Examination, 2005, conducted in June 2006, which
was more than five years prior to the crucial date for LDCE-2011,
and his approved service commenced from 01.07.2007. Thus, he had
completed four years of approved and continuous service as on
01.07.2011 and fulfilled the prescribed eligibility conditions for
LDCE-2011. Similarly, Respondent No.4, Shri Abhinav Kumar, had
joined the Ministry on the basis of the SSC Graduate Level
Examination, 2003, and his approved service commenced from
01.07.2004. He had completed the requisite period of approved and
continuous service as on 01.07.2009 and was accordingly eligible to
appear in LDCE-2009.
56. As regards the allegation that Respondent Nos. 3 and 4 were
initially disqualified and were thereafter illegally permitted to appear
in the examination, learned counsel submits that the candidature of
Respondent No.3 was initially rejected by the UPSC vide
communication dated 13.02.2013, but the said rejection was
subsequently withdrawn by the UPSC vide email dated 15.02.2013.
Since the rejection and subsequent withdrawal thereof were
undertaken by the UPSC, the UPSC is in a better position to explain
the circumstances in that regard. In respect of Respondent No.4,
22
learned counsel submits that no information or record is available
with Respondent No.1 to indicate that his candidature was ever
rejected by the UPSC at any stage of the selection process.
57. With regard to the allegation concerning incorrect assessment
or evaluation of the ACRs/APARs of the candidates, learned counsel
submits that the assessment of service records was undertaken by
the UPSC and, therefore, Respondent No.2 is competent to respond
to the said allegation. It is further submitted that the date of actual
joining has no bearing on the computation of approved service for the
purpose of determining eligibility under the applicable rules. The
eligibility of the concerned candidates was determined in accordance
with the definition of approved service and the specific proviso
contained in the notification dated 15.09.2012.
58. Learned counsel further submits that merely because a
candidate may have joined the Ministry subsequent to the date of the
competitive examination through which he was recruited, the same
would not render him ineligible if the competitive examination itself
had been held more than five years before the relevant crucial date
and the candidate had completed the requisite period of approved
and continuous service in accordance with the applicable rules.
Accordingly, it is submitted that the eligibility of Respondent Nos. 3
and 4 was determined strictly in accordance with the governing rules
and notification.
59. In reply to the rejoinder, learned counsel reiterates the
contents and submissions made in the earlier reply and submits that
the averments contained in paragraphs 4.3 to 4.5, 4.11 to 4.12 and
23
5.1 to 5.3, as well as the corresponding paragraphs relating to the
relief sought, are misleading, wrong and false, except to the extent
they constitute matters of record. It is submitted that there is no
merit in the contentions raised by the applicant and that the earlier
submissions of Respondent No.1 may be read as part of the
additional affidavit. Learned counsel accordingly submits that the
allegations regarding the eligibility of Respondent Nos. 3 and 4, their
participation in the LDCE, and the assessment of their ACRs/APARs
are devoid of merit and that the Original Application is liable to be
dismissed.
60. Counsel for the applicant has filed the reply to the additional
affidavit and submitted that the present case essentially involves two
issues, namely, whether Respondent Nos. 3 and 4 were eligible to
participate in LDCE-2011 and LDCE-2009 respectively, and whether
they could have been awarded marks on the basis of ACRs/APARs
for periods during which they were not even borne in the relevant
cadre.
61. Learned counsel submits that the undisputed position is that
Respondent No.3 appeared in the SSC Graduate Level Examination-
2005, conducted in June 2006, and joined the Ministry only on
29.08.2008. He was nevertheless treated as eligible for LDCE-2011,
for which the crucial date was 01.07.2011, despite having less than
three years of actual service as on the said date. It is further
submitted that not only was Respondent No.3 treated as eligible, but
he was also awarded marks on the basis of ACRs/APARs pertaining
to the period prior to his actual appointment on 29.08.2008.
24
62. Learned counsel submits that a similar position exists in the
case of Respondent No.4, who appeared in the SSC Graduate Level
Examination-2003, conducted in September 2003, and joined the
Ministry on 08.05.2006. He was treated as eligible for LDCE-2009,
for which the crucial date was 01.07.2009, although he had only
about three years and two months of actual service as on the
relevant date. It is submitted that Respondent No.4 was also awarded
marks on the basis of ACRs/APARs relating to the period prior to his
actual appointment on 08.05.2006.
63. Learned counsel further submits that the respondents are
treating the service of Respondent No.3 as “approved service” with
effect from 01.07.2006 for the purpose of holding him eligible for
LDCE-2011, whereas the applicable requirement is not merely
“approved service” but “approved and continuous service” of the
prescribed period. According to learned counsel, such interpretation
is contrary to law, as Respondent No.3 was actually borne in the
cadre only on 29.08.2008 and cannot be deemed to have rendered
continuous service in the cadre from a date prior to his actual
appointment.
64. Learned counsel submits that even if Respondent No.3 was
subsequently accorded placement in the seniority list with effect from
an earlier date, such notional placement cannot be equated with
actual continuous service in the cadre. It is contended that the
requirement of “approved and continuous service” necessarily
presupposes actual service in the relevant grade and cannot be
25
satisfied merely by assigning a retrospective or notional seniority
date.
65. Learned counsel further submits that the interpretation
adopted by the respondents would lead to an anomalous and legally
untenable situation. By way of illustration, it is submitted that if the
SSC CGLE-2005 was conducted in June 2006, but the result was
declared only on 01.06.2011 and the selected candidates were issued
offers of appointment on 10.06.2011 to join by 30.06.2011, a person
actually joining on 30.06.2011 would, on the interpretation advanced
by the respondents, also become eligible for LDCE-2011 merely
because the competitive examination had been conducted more than
five years earlier. Learned counsel submits that such an
interpretation cannot be sustained and calls for determination by the
Tribunal.
66. Learned counsel further submits that, even assuming for the
sake of argument, without admitting, that marks could be awarded
for periods in which an ACR was unavailable on account of non-
writing of the ACR or where an ACR was subsequently declared non-
est, such principle cannot extend to a period during which the
candidate was not even borne in the relevant cadre. A person cannot
earn an ACR/APAR for a period during which he was not serving in
the concerned grade and, consequently, no marks could lawfully be
awarded on the basis of such non-existent or unearned service
records.
67. Learned counsel accordingly submits that Respondent Nos. 3
and 4 were not eligible to participate in LDCE-2011 and LDCE-2009
26
respectively, and that the award of marks to them for ACRs/APARs
relating to periods prior to their actual appointment in the relevant
cadre was illegal and materially affected the final result. It is
therefore prayed that the Original Application be allowed by holding
Respondent Nos. 3 and 4 ineligible for the respective examinations
and by granting the applicant appropriate consequential relief in
accordance with law.
68. We have heard the learned counsel for the parties and perused
the pleadings, documents and material available on record.
69. The applicant has challenged the final result of the Combined
Section Officers’/Stenographers’ (Grade ‘B’/Grade ‘I’) Limited
Departmental Competitive Examination (SO/PS LDCE) for the years
2009, 2010 and 2011, declared by the Union Public Service
Commission (UPSC) on 24.07.2013. The principal grievance of the
applicant is that Respondent Nos. 3 and 4 were allegedly not eligible
to participate in LDCE-2011 and LDCE-2009 respectively and that
they were subsequently awarded marks on the basis of ACRs/APARs
relating to periods during which they had not actually been borne in
the relevant feeder grade. The applicant has also challenged the
consequential selection and promotion of the private respondents,
contending that, if the allegedly inadmissible marks were excluded,
the applicant would have secured a higher position in the merit list
and would have been selected for promotion to the post of Section
Officer.
70. The respondents, on the other hand, have contested the claim
on both limitation and merits. It has been submitted that the
27
examination was conducted by UPSC in accordance with the
applicable statutory rules and the notification dated 15.09.2012. It
has further been submitted that the eligibility of the private
respondents was correctly determined by applying the definition of
“approved service” contained in the applicable IFS (B) Rules and the
specific proviso contained in the examination notification.
71. We have also taken note of the fact that the present
proceedings constitute the second round of litigation between the
parties, the applicant having earlier instituted OA No. 88/2015,
which was subsequently withdrawn with liberty. The applicant has,
however, filed an application seeking condonation of delay and has
explained the circumstances relied upon by him. Since the matter
has been heard at length on merits and the controversy can
appropriately be decided on the substantive issues, we do not
consider it necessary to non-suit the applicant solely on the ground
of limitation. The issue is, therefore, examined on merits.
72. The first and principal issue for consideration is whether
Respondent Nos. 3 and 4 were eligible to participate in LDCE-2011
and LDCE-2009 respectively.
73. The relevant examination notification dated 15.09.2012
prescribed the eligibility requirement of approved and continuous
service. At the same time, a specific proviso was incorporated in
respect of candidates appointed to the relevant grade on the basis of
the result of a competitive examination, including a Limited
Departmental Competitive Examination. Such examination was
required to have been held not less than five years before the crucial
28
date and the candidate was required to have rendered the prescribed
period of approved and continuous service in the relevant grade.
74. The applicant’s principal contention is that Respondent No. 3
could not be treated as eligible for LDCE-2011 merely because he
had appeared in CGLE-2005 in June 2006, since his actual
appointment in the Ministry was on 29.08.2008. According to the
applicant, on the crucial date, i.e. 01.07.2011, Respondent No. 3 had
rendered less than three years of actual service in the relevant grade.
A similar contention has been raised in respect of Respondent No. 4,
who was appointed on 08.05.2006 and was treated as eligible for
LDCE-2009.
75. The contention, attractive as it may appear at first blush,
cannot be accepted in view of the statutory definition of “approved
service” contained in the applicable IFS (B) Rules. The definition
specifically provides for the manner in which approved service of a
person directly recruited to a grade is to be reckoned. Thus, in the
case of an officer recruited directly to a grade through a competitive
examination, approved service is to be reckoned in accordance with
the statutory rule and not merely from the date on which the officer
physically joined the post.
76. Consequently, once Respondent No. 3 had been recruited
through CGLE-2005, the fact that the examination was conducted in
June 2006 and that his actual appointment took place subsequently
cannot, by itself, result in exclusion of the period which the statutory
rules expressly recognise for the purpose of reckoning approved
29
service. The same principle applies to Respondent No. 4, who was
recruited through CGLE-2003.
77. In our considered view, the expression “approved and
continuous service” occurring in the examination notification has to
be read harmoniously with the statutory definition of “approved
service”. The expression “continuous” cannot be construed in
isolation so as to nullify or rewrite the specific statutory provision
prescribing the commencement and computation of approved service
in the case of direct recruits.
78. The illustration given by the applicant that, under the
respondents’ interpretation, even a person joining immediately before
the crucial date could become eligible merely because the competitive
examination had been conducted more than five years earlier, cannot
lead us to disregard the express language of the governing statutory
provision. The eligibility of each candidate has to be determined in
accordance with the Rules applicable to the examination and not on
the basis of hypothetical situations.
79. It is also relevant that the applicant’s challenge proceeds
substantially on the premise that the actual date of appointment is
necessarily determinative of approved service. That premise cannot
be accepted where the Rules prescribe a particular method for
reckoning approved service in the case of direct recruits. The
Tribunal cannot substitute its own method of reckoning service when
the Rules prescribe a specific statutory methodology.
30
80. We, therefore, find no infirmity in the respondents’ stand that
Respondent Nos. 3 and 4 fulfilled the prescribed eligibility
requirements for the respective examinations.
81. Learned counsel for the applicant has relied upon the
judgment of the Hon’ble High Court of Delhi in Rajinder Singh
Sehrawat vs. Union of India & Ors. , 93 (2001) DLT 417 (DB), to
contend that an adverse or downgraded assessment not supported by
discernible reasons and influenced by bias or extraneous
considerations cannot be sustained. The said judgment, however, is
clearly distinguishable on facts. It concerned adverse ACR entries
which were specifically alleged to have been actuated by bias and
malice and where such allegations remained unrebutted by the
concerned officers. In the present case, there is neither any
established allegation of bias or mala fide against UPSC or the
Assessment Board nor any material to show that the assessment of
the private respondents was actuated by extraneous considerations.
The said judgment, therefore, does not assist the applicant.
82. Reliance has also been placed upon Union of India & Ors. vs.
Vijender Singh & Ors. , 176 (2011) DLT 247 (DB), particularly the
observations relating to the principle that a person cannot ordinarily
claim appointment, promotion or cadre benefits from a date prior to
being borne on the cadre. The said principle is not attracted to the
present controversy, which concerns the computation of “approved
service” for determining eligibility to participate in the LDCE and not
retrospective appointment or promotion. Where the applicable
statutory Rules themselves prescribe a specific manner for reckoning
31
approved service in the case of direct recruits, such statutory
prescription has to be given effect. Thus, the said judgment, rendered
in the context of retrospective appointment, promotion and cadre
benefits, is distinguishable and does not support the applicant’s
contention that only the period of actual physical service after
appointment could be counted for determining eligibility.
83. The second issue concerns the award of marks on the basis of
ACRs/APARs. The applicant submits that no candidate can earn an
ACR/APAR for a period during which he was not actually borne in
the relevant grade and, consequently, no marks could have been
awarded for such period.
84. The respondents have categorically denied the allegation of
fictitious, illegal, grace or bonus marks. UPSC has specifically stated
that the assessment of service records for the SO/PS LDCE was
undertaken by an Assessment Board constituted for the purpose and
that the available ACRs/APARs were assessed in accordance with the
applicable methodology.
85. It has further been explained that, where reports for the entire
prescribed period were not available in the case of an otherwise
eligible candidate, the available reports were assessed and the marks
were proportionately increased so as to bring the assessment to the
prescribed period. According to the respondents, this was not a grant
of bonus or fictitious marks but a method of assessment adopted
uniformly for similarly situated candidates.
32
86. We find considerable force in the submission of UPSC that the
applicant has proceeded on the assumption that the methodology
applicable to ordinary departmental promotion through a
Departmental Promotion Committee must necessarily govern the
assessment undertaken for the SO/PS LDCE. The material placed
before us, however, indicates that UPSC constituted an Assessment
Board and followed its prescribed methodology for evaluation of the
service records of candidates appearing in the LDCE.
87. The applicant has not placed before us any statutory provision
which expressly prohibits UPSC from proportionately assessing the
available service records of an otherwise eligible candidate in the
manner stated by the Commission. Nor has the applicant
demonstrated, by reference to the original assessment record, that
the marks awarded to Respondent Nos. 3 and 4 were fabricated,
fictitious or outside the prescribed methodology.
88. It is important to bear in mind that the Tribunal, while
exercising judicial review over a selection process, does not sit as an
appellate authority over every assessment made by an expert
selection body. Unless the assessment is shown to be contrary to the
statutory rules, actuated by mala fides, arbitrary, discriminatory or
based upon a demonstrably impermissible methodology, interference
is not warranted.
89. In the present case, the applicant has questioned the
correctness of the marks awarded to the private respondents
primarily by making his own calculations. However, the mere fact
33
that the applicant’s calculation produces a different result cannot, by
itself, establish that the assessment made by UPSC was illegal.
90. The record, as placed before us, does not establish that
Respondent Nos. 3 and 4 were awarded marks dehors the prescribed
assessment methodology. In particular, no material has been
produced demonstrating that UPSC consciously awarded fictitious or
non-existent ACRs to the private respondents in violation of the
applicable instructions.
91. We also find substance in the submission of UPSC that the
applicant has selectively relied upon certain DoP&T instructions
concerning the grading and evaluation of ACRs/APARs without
demonstrating that the said instructions override or prohibit the
specific assessment methodology adopted by UPSC for the SO/PS
LDCE.
92. The applicant has thus failed to establish that the assessment
of service records by UPSC was either contrary to the governing rules
or so arbitrary and irrational as to warrant judicial interference.
93. The applicant’s consequential claim for selection and
promotion is founded entirely upon his contention that Respondent
Nos. 3 and 4 were ineligible and that they were awarded inadmissible
marks. Once we have found that the private respondents were
eligible under the applicable statutory scheme and that the applicant
has failed to establish any illegality in the assessment of their service
records, the consequential claim necessarily fails.
34
94. It is settled that mere possession of a higher comparative score
as calculated by an applicant on the basis of a methodology different
from that adopted by the competent selection authority does not
confer an enforceable right to appointment or promotion. The
applicant must first establish that the selection process suffered from
a violation of the statutory rules or from demonstrable arbitrariness.
That burden has not been discharged in the present case.
95. We also find that the allegation of violation of Articles 14 and
16 of the Constitution is not substantiated. No material has been
placed before us to establish that the respondents adopted different
standards for similarly situated candidates or conferred an unlawful
advantage upon Respondent Nos. 3 and 4.
96. Before parting with the matter, we may observe that the
applicant has raised serious questions regarding the interpretation of
“approved and continuous service” and the assessment of service
records. However, questions of interpretation cannot be answered
merely on the basis of the actual date of physical joining when the
statutory rules themselves prescribe a different manner for reckoning
approved service in the case of direct recruits. The statutory
definition has to be given its full effect.
97. In view of the foregoing discussion, we hold that Respondent
Nos. 3 and 4 cannot be held ineligible for LDCE-2011 and LDCE-
2009 respectively merely on the basis of their dates of actual
appointment; that their eligibility was required to be determined in
accordance with the statutory concept of “approved service”
applicable to direct recruits; that the applicant has failed to establish
35
that UPSC awarded fictitious, illegal or impermissible marks to
Respondent Nos. 3 and 4; and that the applicant has failed to
establish any legal infirmity in the final result dated 24.07.2013
warranting interference by this Tribunal.
98. Accordingly, the Original Application is dismissed. All pending
MAs, if any, also stand disposed of accordingly. No costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
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