(Prayer: This Writ Petition filed under Article 226 of the Constitution of India, in the nature of Writ of Certiorarified Mandamus, calling for the records relating to order dated 14.11.2022 in M.A.No.149 of 2021 in OA No.123 of 2017 passed by the Central Administrative Tribunal and to quash the same and to direct respondents 1 to 3 to notionally appoint the petitioner as Senior Scientific officer Grade II (Explosives) w.e.f 16.12.2014 on par with Mr.Sanjeet Kumar along with notional fixation of pay and re-fixation of seniority and notional promotion to the post of Assistant Director / Scientist - C w.e.f 02.07.2019.)

C.V. Karthikeyan J.

1.The petitioner in M.A.No.149 of 2021 in O.A.No.123 of 2017, aggrieved by the order dated 14.11.2022, dismissing the said Miscellaneous Application, has filed the present Writ Petition.

2.The petitioner had filed O.A.No.123 of 2017 seeking records relating to Order No.F.1/45(12)/2013 – R.II dated 02.01.2017 passed by the 2nd respondent, Union Public Service Commission and to quash the same and to direct the respondents to issue appointment order to him to the post of Senior Scientific Officer Gr.II (Explosives) in Central Forensic Science Laboratory (CFSL) w.e.f. 16.12.2014 and also to pay monetary and service benefits.

3.The petitioner, D.Kumar had earlier worked in Cordite Factory at Aruvankadu and when later working as Chemical and Metallurgical Superintendent in Southern Railway, was posted in the Laboratory of Diesel Loco Shed at Trichy. He applied for the post of Senior Scientific Officer Gr-II (Explosives) in CFSL pursuant to an advertisement dated 11.05.2013 published in the Employment News by the 2nd respondent / Union Public Service Commission and also uploaded in their website. The petitioner attended the interview. He later sought the details of the marks obtained. A reply was furnished stating that the petitioner had been placed in the third rank, as he had obtained 65 marks. The petitioner belonged to Other Backward Community. There were two other candidates, who also belonged to the same community, who had obtained higher marks / 70 and 66 while the petitioner had obtained 65 marks in the interview. The candidate who obtained the second rank / 66 marks, Narendra Kumar Biswal was junior to the petitioner in Cordite Factory at Aruvankadu.

4.The petitioner sent a representation dated 23.12.2013 stating that Narendra Kumar Biswal had produced a false Experience Certificate and that his application should not have been considered and that he should not have been recommended for the post of Senior Scientific Officer, Gr-II (Explosives) in CFSL.

5.The respondents, however, did not take any action. This forced the petitioner to file O.A.No.175 of 2014 before the Central Administrative Tribunal, Chennai, seeking a direction to consider him for appointment and to remove Narendra Kumar Biswal.

6.The petitioner received a reply from the respondents that the 1st respondent, the Secretary, Ministry of Home Affairs, Union of India, had issued a show cause notice dated 23.10.2015 to Narendra Kumar Biswal seeking explanation as to why his candidature should not be cancelled. A reply was issued by him on 15.09.2016 stating that he had been selected as SSO G-II (Explosives) in SQAE (ME) and that he was therefore not willing to join as Senior Scientific Officer, Gr-II (Explosives) in Central Forensic Science Laboratory. When O.A.No.175 of 2014 was taken up for hearing, the above fact was brought to the notice of the Tribunal. By order dated 07.11.2016, the Tribunal disposed the Original Application granting liberty to the petitioner to approach the Union Public Service Commissioner by giving a representation and further directed that such representation should be examined and disposed of.

7.The petitioner then submitted a representation dated 26.11.2016 to the respondents seeking appointment as Senior Scientific Officer Gr-II (Explosives). The 2nd respondent / Union Public Service Commission by an order dated 02.01.2017 refused to consider the case of the petitioner on the ground that the reserve list would be valid only for 18 months from the date of finalization of the Interview Board Report and could be extended to 24 months in exceptional circumstances and since that time period has passed, the petitioner cannot be recommended to the said post.

8.The petitioner then filed O.A.No.123 of 2017 seeking to quash the said order of the 2nd respondent / Union Public Service Commission and seeking appointment to the post of Senior Scientific Officer, Gr-II (Explosives) in CFSL. By order dated 24.04.2017, the Tribunal held that there was no dispute that the 1st respondent / Secretary, Ministry of Home Affairs, Union of India, had found that the information regarding experience as claimed by Narendra Kumar Biswal was not corroborated by facts and also by the information received from his erstwhile employer. It was further observed that though the show cause notice was issued, and though it is claimed that a reply was submitted, a copy of the reply was not available in the records. It was also observed that a finding had not been rendered that he was eligible to be appointed to the said post. The Tribunal also wondered as to why the respondents took over two years to issue the show cause notice. It was observed that if the reserve list could be kept alive only for a period of 18 months under normal circumstances and for a period of 24 months under exceptional circumstances, the 2nd respondent should have initiated steps within that period, and it was therefore held that there was no justification for the inaction for over two years. It was further observed that the petitioner was not responsible for the delay. It was further observed that if the respondents had taken timely action and had disqualified Narendra Kumar Biswal then the petitioner would have been recommended for appointment even during the period when the select list was uploaded. In view of the said reasonings, the Tribunal finally held as follows:

                   “13.In the aforesaid facts and circumstances, we have no hesitation to hold that the applicant is entitled to be appointed to the post of Senior Scientific Officer Gr.II (Explosive). The respondents are accordingly, directed to issue an appointment order in favour of the applicant forthwith.

                   14.OA is allowed. No costs.”

9.The 2nd respondent / UPSE then recommended the name of the petitioner for appointment to the said post. The petitioner was also issued with order of appointment dated 30.08.2017 and directed to join CFSL, Bhopal. He was relieved by the Railways on 26.12.2017 and joined duty on 28.12.2017.

10.The petitioner, however, submitted a further representation on 16.02.2018 that his appointment should have been with effect on and from 16.12.2014 and claimed fixation of seniority and other service benefits. The petitioner then issued a notice on 14.04.2018 seeking compliance of the directions of the Tribunal. A reply was received from the 3rd respondent that the Tribunal had not given any specific direction to grant benefits to the petitioner from 16.12.2014.

11.In the meanwhile, the respondents issued in-situ promotion to the persons who were holding the post of Scientist ‘B’ to the Grade of Assistant Director & Scientist ‘C’ in CFSL in Level 11 of pay matrix. The petitioner, however, not considered for such promotion. The candidate who had been selected, Sanjeet Kumar to the post of SSO Grade – II/Sci.B (Exp.) had been granted the benefit of promotion. The petitioner sent further representations. The respondents reiterated that there was no direction by the Tribunal to grant benefits retrospectively to the petitioner from 16.12.2014.

12.The petitioner therefore filed M.A.No.149 of 2021 in O.A.No.123 of 2017 before the Tribunal seeking a direction to appoint him w.e.f. 16.12.2014 as Senior Scientific Officer Grade-II (Explosives) on par with Sanjeet Kumar and seeking fixation of notional pay and to consider him for further promotion on that basis. By order dated 14.11.2022, the Tribunal dismissed the Miscellaneous Application holding that the earlier order of the Tribunal dated 24.04.2017 had been complied with by the respondents and that the petitioner could not be granted service benefits retrospectively.

13.Challenging that particular order, the petitioner had filed the present Writ Petition.

14.A counter affidavit had been filed by the 3rd respondent, wherein, after narrating the facts, it had been stated that in compliance with the directions issued by the Tribunal in O.A.No.123 of 2017 on 24.04.2017, the Union Public Service Commission by letter dated 02.06.2017 had recommended the name of the petitioner for appointment to the post of SSO Grade-II (Explosives) in CFSL on Direct Recruitment process. It had been stated that approval of the Appointing Authority was thereafter obtained on 17.08.2017 and orders were issued to the petitioner, who joined at CFSL Bhopal on 28.12.2017. It was contended that a candidate cannot receive the benefits of an appointment prior to the recommendations of Union Public Service Commission as the appointment and selection process was the official outcome of the orders of UPSC. It was also pointed out that the Tribunal had observed, while dismissing M.A.No.149 of 2021, that the petitioner has no right of service benefit prior to the joining the post. He had been appointed only from the reserve list and therefore, he cannot seek retrospective benefits. It was therefore contended that the Tribunal had appreciated all facts and had correctly dismissed the Miscellaneous Application and that the said order does not require interference by this Court.

15.Heard Mr.N.G.R.Prasad, learned counsel appearing for the petitioner and Mr.AR L.Sundaresan, learned Additional Solicitor General appearing for the 1st and 3rd respondent and Mr.V.Chandrasekaran, learned Senior Panel Counsel for the 2nd respondent.

16.Mr.N.G.R.Prasad, learned counsel appearing for the petitioner took the Court through the facts of the case. The learned counsel emphasized that one of the basic requisites to apply to the post of SSO Gr-II (Explosives) was three years of experience in Analytical Method and Research in the field of Explosives. The learned counsel stated that the petitioner was earlier working in Cordite Factory at Aruvankadu, where Narendra Kumar Biswal was also working and the petitioner had direct knowledge of the fact that Narendra Kumar Biswal did not have the requisite experience to even apply to the post of SSO Gr-II (Explosives). However, his application was processed and he also attended the interview. The learned counsel pointed out the conditions provided in the application form, wherein it had been very clearly stated that when a candidate submitted statements which are incorrect or false he/she would be liable to be disqualified by the Commission from selection. The learned counsel therefore argued that Narendra Kumar Biswal having furnished false information should have been disqualified in the initial stage itself and had he been so disqualified, then the petitioner would have been automatically recommended for the selection to the said post on the very same day as the other candidate Sanjeet Kumar was selected and they would have joined on same day / 16.12.2014.

17.The learned counsel further pointed out that the petitioner had immediately sent a representation questioning the eligibility of Narendra Kumar Biswal. The 2nd respondent however took nearly two years to respond. The finally issued a show cause notice clearly pointing out that Narendra Kumar Biswal did not have the requisite experience and calling for explanation. The learned counsel stated that since a show cause notice has been issued, there was an obligation on the part of the 2nd respondent to render a finding either based on the reply given or if a reply was not given on the basis of the available records.

18.The learned counsel expressed deep anguish over the fact that the 2nd respondent / UPSC did neither.

19.The 2nd respondent / UPSC however stated that the petitioner could not be considered for recommendation since the reserve list had expired. The learned counsel then pointed out the order of the Tribunal in the earlier round of litigation wherein, the Tribunal had clearly observed that the delay by the UPSC was not on the ground of any fault of the petitioner. He further pointed out that the relief sought before the Tribunal was to consider the petitioner for appointment w.e.f 16.12.2014. The said Original Application had been allowed and a direction had been issued to the UPSC to recommend him for the post. The learned counsel argued that the sequence of events make it evident that the Tribunal had directed his appointment w.e.f. 16.12.2014 and not from any arbitrary later date.

20.The learned counsel further argued that the petitioner had been denied the opportunity of being promoted on par with Sanjeet Kumar. He had been initially denied appointment only owing to the fact that Narendra Kumar Biswal applied for the post though he was not eligible and the respondents had not taken any steps to disqualify him within a reasonable period of time and consider the petitioner for appointment.

21.The learned counsel placed reliance on the following judgments:

22. (2020) 5 SCC 230, C.Jayachandran Vs. State of Kerala and Others, wherein the Hon’ble Surpeme Court had held that the appellant therein had been wrongfully excluded from the process of appointment only on account of illegal and arbitrary grant of moderation of marks and the select list was directed to be revised. It was held that the appellant would be deemed to be appointed along with other candidates in the same select list and on the same date when other candidates were appointed pursuant to the same advertisement.

23.The learned counsel placed reliance on the ratio stated above and urged that this Court should consider the appointment of the petitioner from the date when the co-candidate Sanjeet Kumar was appointed pursuant to the same advertisement.

24.(1996) 8 SCC 637, Pilla Sitaram Patrudu and Others Vs. Union of India and Others, wherein the Hon’ble Supreme Court had held that when the appointment of a direct recruit was delayed for no fault on his part but due to latches on the part of the Department, then he would be eligible to be appointed in accordance with the rules and his seniority should be determined as per the procedure prescribed in the rules. Paragraph No.3 of the judgement is as follows:

                   “3.It is contended by the learned counsel for the petitioners that since the inter se seniority as Assistant Engineers was left open in the order, the directions given by the Tribunal to consider the case as Executive Engineer and determine his seniority on the basis of promotion, is not valid in law. We find no force in the contention. Once he is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rules in vogue. It is further contended that the fifth respondent was not qualified since he had not completed 8 years of required service. The Tribunal has recorded a finding that two years’ period is relaxable in the case of the reserved candidates. The inter se seniority as Assistant Executive Engineer is required to be determined; he joined service in 1981 and therefore, he did not have the requisite service. We find no force in the contention. Since he was selected by direct recruitment, he is entitled to be appointed according to rule. His appointment was delayed for no fault of his and he came to be appointed in 1981, he is, therefore, entitled to the ranking given in the select list and appointment made accordingly. Under these circumstances, we do not find any illegality in the order.”

25.The learned counsel pointed out the ratio laid and drew a parallel with the instant case, wherein the petitioner had been appointed by an appointment order issued much later though he was eligible even earlier and the candidate whose name was recommended was ineligible to even apply to the post.

26.The learned counsel also placed reliance on the judgment of the Hon’ble Supreme Court reported in (1970) 1 SCC 670, Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, only for the limited purpose that a Court executing a decree cannot go behind the decree and cannot entertain any petition that the decree was incorrect in law or on facts. It was held that a decree, even if it were erroneous is binding on the parties until it is set aside through appropriate proceedings in appeal or in revision.

27.The learned counsel stated that since the Tribunal had allowed O.A.No.123 of 2017, the Tribunal should have considered the relief sought in the Miscellaneous Application which had been filed only to put into effect the earlier order of the Tribunal. The relief sought in O.A.No.123 of 2017 was to consider the appointment of the petitioner as SSO Gr-II (Explosives) w.e.f. 16.12.2014. The learned counsel argued that no further interpretation could be given by the respondents on this issue.

28.Placing his arguments on the above premises, the learned counsel urged that the Writ Petition should be allowed.

29.Mr.AR L. Sundaresan, learned Additional Solicitor General, however disputed the said contentions. The learned Additional Solicitor General pointed out that, even though O.A.No.123 of 2017 had been allowed, there was only a direction to the Union Public Service Commission to issue an order recommending the petitioner to the post of SSO Gr-II (Explosives) which direction had been complied with. There was no direction that the petitioner should be deemed to have been appointed on 16.12.2014 or on any other date. The learned Additional Solicitor General therefore argued that the petitioner, having joined duty on 28.12.2017, was eligible for service and monetary benefits only on and from that date and cannot claim any privilege earlier to that date. He further pointed out that the respondents have to carry out the directions of the Tribunal as directed and cannot interpret the order in the manner in which the petitioner or any third party requires it to be read. He also pointed out that though show cause notice had been issued to Narendra Kumar Biswal there was no adjudication by the 1st respondent and therefore, it cannot be presumed that the averments raised in the show cause notice stood proved or established. The learned Additional Solicitor General pointed out that the petitioner was not eligible for consideration for any monetary or service benefits from any date earlier to the date on which he had joined the said post. He therefore urged that the Writ Petition should be dismissed and the order of the Tribunal should be sustained.

30.We have carefully considered the arguments advanced and perused the material records.

31.The petitioner, D.Kumar, originally joined Cordite Factory at Aruvankadu as Chargeman Gr-II/T(CHEM) on 06.11.2002. He was then promoted on 17.04.2006 as Chargeman Gr-I/T(CHEM). He was then selected to the post of Chemical and Metallurgical Assistant through Railway Recruitment Board Competitive Examination and was later promoted as Chemical and Metallurgical Superintendent w.e.f 07.11.2012. The petitioner had, pursuant to a publication in the Employment News on 11.05.2013, applied for the Post of Senior Scientific Officer Gr-II (Explosives) in CFSL. He was called for an interview. He then sought the marks granted in the interview. He found that two candidates had scored more than him namely, Sanjeet Kumar who had obtained 70 marks and Narendra Kumar Biswal who had obtained 66 marks. The petitioner had obtained 65 marks. All three belonged to Other Backward Community.

32.The petitioner then raised a protest since he claimed to have direct knowledge of the fact that Narendra Kumar Biswal did not have the requisite experience as stipulated in the advertisement, pursuant to which they had all applied to the said post. The experience required was three years in Analytical Method and Research in the field of Explosives. It was the contention of the petitioner that he had been working along with Narendra Kumar Biswal in Cordite Factory and was therefore, very certain that Narendra Kumar Biswal did not have the said experience.

33.The application of Narendra Kumar Biswal was however accepted and he was called to attend the interview. This would have been possible only when he had submitted an application form reflecting that he was fully qualified for the post and he had the requisite experience.

34.The petitioner sent a representation on 23.12.2013 alleging that Narendra Kumar Biswal had produced a false Experience Certificate, which led to his name being recommended for the said post while denying the petitioner of that opportunity. The respondents however did not take any action on his representation.

35.We hold that the said inaction on the part of the respondents had directly affected the prospects of the petitioner. The application form provided for a contingency when a candidate submitted fabricated documents or made statements which were incorrect or false or had suppressed material information. It had been stipulated that even one such false declaration would render the candidate to be disqualified by the Commission / UPSC from selection. This disqualification was not owing to any act of misfeasance or conduct of the employee subsequent to his selection, but owing to furnishing of false information in the application for being selected to the post of SSO Gr-II (Explosives). When a candidate suffered disqualification owing to furnishing of false information, then he/she, who had been interviewed and who had been granted marks in the interview should have been disqualified and it should have been held that his/her application itself stood rejected.

36.The stand of the respondents in O.A.No.175 of 2014, was that the petitioner stood in the first place in the reserve list and that the reserve list would be active only for a period of 18 months normally or for 24 months under exceptional circumstances. This contention of the respondents has to be rejected, since the respondents could not have considered Narendra Kumar Biswal as a candidate eligible to be considered for appointment and should have disqualified him and should have pushed the petitioner to the second rank and not retained him in the third rank or as a candidate in the reserve list.

37.The fact Narendra Kumar Biswal had submitted false information had also been noted by the 2nd respondent in their show cause notice issued wherein, they had very clearly pointed out by communication dated 23.10.2015 that a scrutiny of the application revealed that he had submitted false information and suppressed factual information in his online application dated 30.05.2013, wherein, he had stated that he possessed experience as Junior Works Manager in Cordite Factory, Aruvankadu w.e.f. 27.01.2003 to 30.05.2013. He had further given his experience as Chargeman w.e.f. 27.01.2003 to 12.10.2010 and as Junior Works Manager w.e.f. 13.10.2010 till the date of his application dated 30.05.2013.

38.It was further pointed out that the Experience Certificate issued by Cordite Factory stated that he was a permanent employee from 27.10.2003 as Junior Works Manager. It was further pointed out that the information regarding experience and the Experience Certificate did not align with the information intimated by the employer. It was therefore observed that, it was apparent that he had submitted false information and suppressed the true facts in his application form. The declaration given by him in the application form were then pointed out. The show cause notice was issued seeking an explanation why his appointment should not be cancelled.

39.It is claimed that Narendra Kumar Biswal issued a reply, but the reply was not available in the records. He however, issued a communication that he had been selected through UPSC to another post and that he therefore does not want to join the post of SSO Gr-II (Explosives) in CFSL.

40.It is extremely unfortunate that the 2nd respondent had dropped the issue then and there. We hold that they should have disqualified his candidature on the basis of the available records and since such disqualification would relate back to the date of his application, wherein he had, even according to them, furnished false information, he could never had been termed as the second rank candidate. The petitioner should never had been ranked as a candidate in the reserve list. We hold that the petitioner should have been moved up to the second position.

41.The petitioner filed O.A.No.123 of 2017 seeking to consider his appointment w.e.f. 16.12.2014. The Tribunal allowed the said application and directed the respondents to issue an appointment order forthwith. This order can only be interpreted as implying that an appointment order should be issued reflecting that the petitioner had joined on 16.12.2014. The respondents issued an appointment order, but denied him the benefits on and from 16.12.2014. Seeking that benefit, the petitioner had filed a Miscellaneous Application, which was dismissed and challenging that order, the present Writ Petition had been filed.

42.In the Miscellaneous Application, the Tribunal had, very unfortunately, refused to put into effect their own earlier order in O.A.No.123 of 2017. The Tribunal had faithfully accepted the stand of the respondents that the appointment would be in effect from the date on which the petitioner had joined duty. We hold that the Tribunal had a significant responsibility to examine whether the denial of opportunity to the petitioner was owing to any fault on the part of the petitioner or owing to the inaction on the part of the respondents. It had been very categorically held in OA.No.123 of 2017 that it was only owing to the inaction on the part of the respondents.

43.Under normal circumstances, the petitioner can never claim a right of benefit prior to joining the post, however, he can certainly claim such benefit when his candidature had been deliberately or otherwise overlooked in favour of a candidate who was ineligible to even apply for the post and had still applied for the post furnishing false information.

44.This would only indicate that the respondents have condoned furnishing of false information. Such condonation would only lead to encouragement of furnishing false information and when detected walking away preventing any adjudication being made. That eventuality should be prohibited. We hold that the respondents had a duty to adjudicate on the show cause notice, either on the basis of the records available, which records have not been disputed by Narendra Kumar Biswal and which related to his experience in Cordite Factory and which established that he was not eligible to even apply for the post of SSO Gr-II (Explosives) or on the basis of any explanation furnished. We hold that since he was not eligible, the marks obtained by him should have been struck off and the next candidate should have been moved up and be considered for an appointment.

45.The ratio laid down by the Hon’ble Supreme Court in (2020) 5 SCC 230, C.Jayachandran Vs. State of Kerala and Others, wherein a direct recruit was wrongfully execluded, and it was held that he was eligible to be granted the benefit to be part of the appointment with other candidates who had also applied pursuant to the same advertisement is binding, is applicable to the facts of this case.

46.The petitioner herein had been denied the opportunity to be appointed on 16.12.2014 only owing to the acceptance of an ineligible application submitted by Narendra Kumar Biswal. We hold that the respondents should have taken action immediately and should have disqualified Narendra Kumar Biswal and should have considered the petitioner for selection.

47.We hold that the Tribunal had failed to look into all these circumstances and had closed their eyes, and had, in fact recognized furnishing of false information in an application form as a fact which could be condoned and overlooked. This is not permissible. We therefore allow the Writ Petition and direct that the petitioner should be deemed to have been appointed on 16.12.2014 on par with Sanjeet Kumar, who had also applied for the same post under the same advertisement. We however further hold that the petitioner cannot be granted any monetary benefits and his services should be considered notionally and notional promotion should also be granted and which he would have got, had he been appointed on 16.12.2014 and the application of Narendra Kumar Biswal had been rejected. We direct necessary orders in this regard must be passed by the respondents within a period of six weeks from this date.

48.Accordingly, this Writ Petition stands allowed. No order as to costs. Consequently, connected Writ Miscellaneous Petition is closed.