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Abhijit Ghosh v. Union Of India

Central Administrative Tribunal

May 16, 2012

Judgment

CaseIQ

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Factual and Procedural Background

The applicant applied for one of five advertised posts of Deputy Drugs Controller (India) in the Central Drugs Standardization & Control Organisation (CDSCO) pursuant to an advertisement published in Employment News (13-19 February). The advertised essential educational qualification required a Master’s Degree in Chemistry/Pharmaceutical Chemistry/Bio-Chemistry/Pharmacy/Pharmacology or equivalent, together with 12 years' relevant experience.

The applicant possesses a Master’s Degree in Bio-Medical Engineering from Jadavpur University and contends that this degree is equivalent to a Master’s Degree in Pharmacy/Pharmacology. He also relied on his experience as an Ex-CSIR Senior Research Fellow in a pharmaceutical research project at Jadavpur University. The applicant was not shortlisted by the Union Public Service Commission (UPSC) for interview on the ground “Lacking Essential Qualification - A (LEA-A)”. He submitted a representation to the UPSC which, according to the applicant, received no response. He thereafter filed the present Original Application (OA) before the Tribunal seeking (i) a direction to consider him for the post, (ii) a declaration that his Master’s in Biomedical Engineering is equivalent to Master’s in Pharmacy/Pharmacology, and (iii) a declaration of eligibility for the post.

UPSC and other respondents filed replies denying entitlement. UPSC explained the shortlisting criteria it adopted because 280 applications were received for 5 posts and stated that the applicant had not furnished any authority or certificate establishing equivalence of his qualification as required by the advertisement. The Tribunal heard the parties, considered the advertisement terms (including specific instructions requiring applicants to attach degree certificates and, where a qualification is claimed to be equivalent, to indicate the authority and number/date under which it was so treated), and dismissed the OA. The Tribunal recorded that interviews had been held in January 2011 and that results were not declared due to pendency of a few OAs; the OA was dismissed and no costs were imposed.

Legal Issues Presented

Whether the applicant's Master’s Degree in Bio-Medical Engineering could be declared equivalent to a Master’s Degree in Pharmacy/Pharmacology for the purpose of eligibility to the post of Deputy Drugs Controller (India).
Whether the UPSC was obliged to examine the equivalence claim despite the applicant not furnishing any certificate or authority (with number and date) establishing equivalence, as required by the advertisement.
Whether the UPSC's shortlisting practice (raising educational qualification/experience for selection where applications are numerous) was legitimate and whether the applicant could be permitted to claim consideration against lower advertised minimum qualifications when he did not challenge the advertisement.

Arguments of the Parties

Applicant's Arguments

The applicant asserted that his Master’s Degree in Bio-Medical Engineering from Jadavpur University is equivalent to a Master’s Degree in Pharmacy/Pharmacology and that he had relevant pharmaceutical research experience (including as a CSIR Senior Research Fellow on a project titled “Research on Medicinal Plants” conducted in the Pharmaceutical Technology Department, Jadavpur University).
He argued that the UPSC should have examined whether his qualification was equivalent to the prescribed qualifications and relied on a decision of the Madras High Court (G. Selvam & Others v. The Chairman, Teacher Recruitment Board & Others) to support the proposition that the recruiting authority should test equivalence.
He alleged that his application was rejected without considering equivalence and that his representation to UPSC went unanswered, justifying the present OA.

Respondents' / UPSC's Arguments

The UPSC and respondents contended that the prescribed essential educational qualifications did not include an engineering degree and that the applicant had not produced any certificate from a competent authority (such as the Association of Indian Universities or other appropriate authority) showing his degree to be equivalent to the prescribed qualification at the time of applying, as explicitly required by para 7(iii) of the advertisement instructions.
They emphasized that the advertisement warned that mere possession of minimum qualifications would not entitle a candidate to be called for interview and that UPSC could short-list by raising qualification/experience where applications were numerous; accordingly, UPSC legitimately adopted higher shortlisting standards (increasing EQ-A to Ph.D. for some categories and raising required experience for General candidates).
UPSC relied on Supreme Court authorities to assert that the right to shortlist candidates by fixing higher criteria is legally recognized and maintained that accepting the applicant's contention without the requisite equivalence certificate would have far-reaching and destabilizing consequences for recruitment processes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M.P. Public Service Commission v. Navnit Kumar Potdar and Another, JT 1994 (6) SC 302	Recognizes the recruiting authority's right to shortlist candidates and to adopt higher criteria than the minimum advertised qualifications when necessary.	The Tribunal treated this authority as supporting the legitimacy of UPSC's shortlisting practice and relied on it in upholding the UPSC's decision not to consider the applicant absent required equivalence documentation.
Government of A.P. v. P. Dilip Kumar and Another, JT 1993 (2) SC 138	Also recognizes the principle that a recruiting agency may reasonably shortlist candidates and adopt higher standards of qualification/experience where warranted.	The Tribunal relied on this decision together with the M.P. PSC case to validate UPSC's shortlisting criteria and procedure in the circumstances of the present recruitment.
G. Selvam & Others v. The Chairman, Teacher Recruitment Board & Others (Madras High Court)	Relied upon by the applicant to argue that the recruiting authority should examine equivalence claims.	The Tribunal observed that the Madras High Court decision was based on different rules applicable in that case and therefore would not advance the applicant’s case under the terms of the present advertisement; the Tribunal declined to treat it as determinative here.

Court's Reasoning and Analysis

The Tribunal's analysis proceeded from the unambiguous terms of the advertisement and the particular procedural requirements it contained. The advertisement made three points clear which drove the Tribunal's reasoning:

The advertisement specified that mere possession of the minimum advertised qualification would not entitle a candidate to be called for interview (Note-I).
It expressly empowered the Commission to restrict the number of candidates called for interview by adopting higher qualifications or experience than the minimum (Note-II), and it explained possible methods of shortlisting when applications are numerous.
It contained a mandatory documentation requirement (para 7 and para 7(iii)) stating that where a candidate claims an equivalent qualification, he must indicate the authority (with number and date) under which the qualification has been treated as equivalent and attach the relevant documents.

On these bases the Tribunal reached the following conclusions in sequence:

The onus was on the applicant at the first instance to demonstrate equivalence by producing the authority and documentary proof required by the advertisement. Because the applicant did not attach any equivalence certificate or indicate any authority (with number/date) when applying, he did not discharge that onus.
Where the advertisement expressly provides that the Commission may raise the bar for shortlisting (including by requiring higher qualifications/experience), the Commission is entitled to do so. The Tribunal noted that UPSC had received 280 applications for 5 posts and had rationally adopted shortlisting criteria that effectively raised the educational requirement (for General category the shortlisting criterion raised EQ-A to Ph.D. and increased experience requirements).
Because the applicant neither possessed the higher qualification applied for shortlisting (e.g., Ph.D.) nor had he supplied the requisite equivalence documentation, the question of UPSC applying its mind to the applicant’s claimed equivalence did not arise.
The applicant had not challenged the terms of the advertisement. Given this, he could not insist on being considered against the lower advertised minima when the Commission had lawfully adopted higher shortlisting criteria.
The applicant's reliance on the Madras High Court decision (G. Selvam) was addressed: the Tribunal observed that that decision rested on different rules and therefore did not assist the applicant under the explicit terms of the advertisement in the present case.

The Tribunal therefore concluded there was no jurisdictional or legal infirmity in UPSC's rejection of the applicant's application for lack of essential qualification as per the shortlisting criteria and the advertisement conditions.

Holding and Implications

Holding: The Tribunal dismissed the Original Application. The core ruling may be stated as: O.A. DISMISSED.

Implications:

Direct effect: The applicant's challenge to UPSC's rejection of his application for the post of Deputy Drugs Controller (India) was unsuccessful; the Tribunal upheld UPSC’s shortlisting process and its finding that the applicant lacked the necessary documented equivalence and the higher qualifications applied in shortlisting.
The Tribunal emphasized compliance with the advertisement’s mandatory documentary requirements for claiming equivalence; absence of such proof precluded consideration of the equivalence claim in the recruitment process.
The Tribunal recognized and applied the established principle that a recruiting agency may lawfully adopt higher qualification/experience thresholds for shortlisting when many applications are received. The decision did not purport to create or announce any novel legal principle beyond applying the advertisement terms and recognized case law.
Costs: The Tribunal ordered no costs.

This summary is based exclusively on the content of the provided Tribunal opinion and does not add or infer facts beyond those stated therein.

Show all summary ...

By Honble Mrs. Meera Chhibber, Member (J) Applicant has sought the following relief:- (i) Direct the respondents to consider the applicant for the post of Dy. Drugs Controller (India) in the Central Drugs Standardization Control Organization (CDCSO) under the Directorate General of Health Services, Ministry of Health and Family Welfare;

(ii) To declare the degree of Masters in Biomedical Engineering to be equivalent to the degree of Masters in Pharmacy or Pharmacology and to direct the respondents to treat the said two degrees accordingly; and

(iii) To declare the applicant to be eligible for the said post of Dy. Drugs Controller (India) in the Central Drugs Standardization Control Organization (CDCSO) under the Directorate General of Health Services, Ministry of Health and Family Welfare.

2. It is submitted by the applicant that he was directly employed on the post of Drugs Inspector, with the Drugs Control Department, Government of NCT of Delhi. The applicant possesses a Masters Degree in Bio-Medical Engineering which is equivalent to a Masters Degree in Pharmacy/Pharmacology from Jadavpur Univerversity, which is a recognized University. The applicant is also an Ex-CSIR Senior Research Fellow of Pharma Technology Department, Jadavpur University, Kolkata. After obtaining his Masters Degree in Biomedical Engineering, the applicant was selected for the post of Senior Research Fellow under the Council of Scientific and Industrial Research (CSIR), Pusa, Delhi, the project was Research on Medicinal Plants which was a Pharmaceutical Project and the applicant carried his research work in Pharmaceutical Project and the applicant carried his research work in the Pharmaceutical Technology Department, Jadhavpur Univeristy, Kolkata, West Bengal.

3. The post of Dy. Drugs Controller was advertised by the UPSC with the eligibility qualifications as under:- (Ref.No.1/230/2009-R-II) Five Deputy Drugs Controllers (India) in the Central Drugs Standardization control Organisation (CDSCO) under the Directorate General of Health Services, Ministry of Health and Family Welfare. Out of five posts, one post each is reserved for SC & OBC candidates. QUALIFICATIONS: ESSENTIAL: A. Educational: Masters Degree in Chemistry/Pharmaceutical Chemistry/Bio-Chemistry/Pharmacy/Pharmacology of a recognized University or equivalent. B. EXPERIENCE: Twelve years experience in dealing with problems connected with drug standardization and control of drug standards in the manufacture of testing of drugs. DESIRABLE: Experience of administration of the Drugs and Cosmetics Act and the rules thereafter and/or of manufacture and testing of drugs and/or dealing with problems connected with Import and Export of drugs. Since applicant was eligible, he applied for the same. However, he was not called for the interview. He gave a representation also to the UPSC (page 19) but no response was given. He, therefore, had no objection but to file the present OA.

4. According to the applicant Masters in Biomedical Engineering is equivalent to Masters in Pharmacy/ Pharmacology, therefore, his application could not have been rejected by the UPSC without examining the equivalence.

5. UPSC has opposed the OA. They have explained this case relates to recruitment to 5 posts of Deputy Drugs Controller (India) in the Central Drugs Standardization & Control Organization (CDSCO) under the Directorate General of Health Services, Ministry of Health & Family Welfare in the pay sale of Rs.12000-375-16500 advertised vide Commissions Advertisement No.3, Item No.21 on 13.2.2010. Out of 5 posts, 1 post was reserved for OBC candidates and remaining 3 posts were unreserved. Age limit was 50 years as on normal closing date, 55 years for SC candidates and 53 years for OBC candidates in respect of vacancies reserved for them. ESSENTIAL QUALIFICATION A. Educational: Masters Degree in Chemistry/Pharmaceutical Chemistry/Bio-Chemistry/Pharmacy/Pharmacology of a recognized University or equivalent. B. EXPERIENCE:

12 years experience in dealing with problems connected with drug standardization and control of drug standards in the manufacture of testing of drugs. C. DESIRABLE QUALIFICATIONS: Experience of administration of the Drugs and Cosmetics Act and the rules thereafter and/or of manufacture and testing of drugs and/or dealing with problems connected with Import and Export of drugs. D. The short listing criteria adopted in this case are as under:-

(I) For SC Candidates EQ (A) + Ph.D + EQ-B (i.e. 12 years experience) For OBC Candidates - EQ (A) + Ph.D + EQ-B (i.e. 12 years experience)

(III) For General Candidates - EQ (A) raised to Ph.D + EQ-B raised to 16 years EQ-A + EQ-B raised to 19 years E. 280 applications were received against the advertisement and after scrutiny, initially 41 candidates (10 SC, 8 OBC and 23 General candidates) were summoned for interview. The applicant, Shri Abhijit Ghosh having Roll No.18 (General) was not called for interview as his application was rejected under the category of Lacking Essential Qualificaiton- A (LEA-A). Against the prescribed Essential Educational Qualification of Masters Degree in Chemistry/Pharmaceutical Chemistry/Bio-Chemistry/Pharmacy/ Pharmacology of a recognized University or equivalent. The applicant was having Masters Degree in Bio-Medical Engineering. However, in pursuance of Honble Central Administrative Tribunals interim order dated 10.1.2011, he was interviewed provisionally on 12.1.2011, along with other shortlisted candidates and 2 more candidates who were also called in pursuance of interim orders of Honble CAT (PB), New Delhi and Honble CAT, Chandigarh. Interviews for the post have been held on 10-12 January, 2011. Due to pendency of these 3 OAs, result of the interview has not been declared. They have specifically stated that the applicant was not having educational qualification prescribed for the post. He had also not furnished any proof of equivalence of Masters Degree possessed by him to the prescribed educational qualification from the competent authority though para 7 (iii) of the important instructions for the candidates published in the Employment News of 13-19 February, 2010 along with advertisement for the subject post provides that if the qualification possessed by the candidate is equivalent, the authority (with number and date under which it has been so treated must be indicated. They have further stated that as per procedure, administrative Ministry was also duly informed of the rejection made on this ground, therefore, the OA may be dismissed. They have relied on following judgments:-

(i) M.P. Public Service Commission Vs. Navnit Kumar Potdar and Another reported in JT 1994 (6) SC 302.

(ii) Government of A.P. Vs. P. Dilip Kumar and Another reported in JT 1993 (2) SC 138. to state that they are well within their right to short list the candidates.

6. Respondents No.1 and 2 have filed separate reply. They have stated as per RRs for the post of Dy. Drugs Controller (India) educational qualifications are as under:- (i)Masters Degree in Chemistry/Pharmaceutical Chemistry/Bio-Chemistry/Pharmacy/Pharmacology of a recognized University or equivalent.

(ii) Twelve years experience in dealing with problems connected with drug standardization and control of drug standards in the manufacture of testing of drugs. In addition, experience of administration of the Drugs and Cosmetics connected with import and export of drugs was prescribed as desirable qualification. Thus the engineering qualification possessed by the applicant herein is not one of the prescribed qualifications for the post of Dy. Drugs Controller (India) and hence he is not eligible for consideration to the post of direct recruitment. If the applicants qualification is equivalent, as claimed by him, to one of the qualifications prescribed for the psot as per the notified RRs, it was incumbent upon him to submit the necessary equivalency certificate issued by the appropriate authority at the time os submission of his application to the post. To cite an example, the candidates possessing the Associateship (AIC) Examination conducted by the Institution of Chemists (India), Kolkata submit the requisite certificate as equivalent to M.Sc degree in Chemistry. If the contention of the applicant herein is accepted it will have wider repercussions on recruitment to public services as persons having innumerable educational and other qualifications could challenge recruitments arbitrarily claiming to possess equivalency in the manner as has been done by the applicant herein. Since the candidate has not followed the right course in making his application, it was bound to be rejected at the consideration stage itself and he could not have been aggrieved on this account. As such the present OA is misconceived and is bereft of any substance in the allegations levelled against the respondents herein.

7. They have further stated that mere possession of the minimum qualification/experience prescribed for a post cannot guarantee a persons selection where personnel with higher qualifications and specialized experience are available in abundance. Hence, short listing of applications by recruiting agency is a legitimate process in selections where number of applications is found to be very high. Moreover, the selection to the post in the instant case is to be made by the UPSC which is an independent constitutional body and any allegation of bias against the constitutional institution and the members of the Interview Board is unsustainable in the facts and circumstances of the case. In view of these facts, the OA herein is devoid of any merits and is liable to be dismissed with heavy costs. The claim of equivalence of Masters degree in Biomedical Engineering with Masters degree in Pharmacy/Pharmacology requires to be certified by the competent authority/organization viz. the Association of Indian Universities (an autonomous expert body under Ministry of Human Resources Development) which has not been submitted by the applicant herein in support of his said claim. They have also prayed that the OA may be dismissed.

8. We have heard all the counsel and perused the pleadings. Admittedly, applicant had applied for the post Dy. Drugs Controller pursuant to an advertisement issued in Employment News 13-19 February wherein essential qualifications were mentioned as follows:- QUALIFICATIONS: ESSENTIAL: A. Educational: Masters Degree in Chemistry/Pharmaceutical Chemistry/Bio-Chemistry/Pharmacy/Pharmacology of a recognized University or equivalent. B. EXPERIENCE: Twelve years experience in dealing with problems connected with drug standardization and control of drug standards in the manufacture of testing of drugs. DESIRABLE: Experience of administration of the Drugs and Cosmetics Act and the rules thereafter and/or of manufacture and testing of drugs and/or dealing with problems connected with Import and Export of drugs. It is relevant to note that in the same advertisement specific instructions were issued which read as under:- MINIMUM EDUCATIONAL QUALIFCAITONS: All applicants must fulfill the essential requirements of the post and other conditions stipulated in the advertisement. They are advised to satisfy themselves before applying that they possess at least the essential qualifications laid down for various posts. No enquiry asking for advice as to be eligibility will be entertained. NOTE-I: The prescribed essential qualifications are the minimum and the mere possession of the same does not entitle candidates to be called for interview. NOTE-II: Where the number of applications received in response to an advertisement is large and it will not be convenient or possible for the Commission to interview all the candidates, the Commission at their discretion may restrict the number of candidates, to a reasonable limit by any or more of the following methods: (a) On the basis of either qualifications and experience higher than the minimum prescribed in the advertisement ; or (b) ON the basis of experience in the relevant field; or ) By counting experience before or after the acquisition of essential qualifications; or (d) By holding a screening test. The candidate should, therefore, mention all the qualifications and experience in the relevant field over and above the minimum qualifications and should attach attested/self certified copies of the Certificates in support thereof. NOTE-III: In regard to Educational Qualifications, the mark sheet in lieu of Educational Certificates will not be accepted by the Commission. NOTE-IV: The provisional claim whatsoever in regard to eligibility to the post will not be accepted by the Commission. The most important is para 7 which reads as under:- 7. CERTIFICATE TO BE ATTACHED Candidates should note that they should attach with their applications attested/self certified copies of the following documents:

(i) Matriculation or equivalent certificate in support of their declaration of age.

(ii) Degree or Diploma Certificate or other certificates in support of their educational qualifications.

(iii) If the qualification possessed by the candidate is equivalent, then the authority (with number and date) under which is has been so treated must be indicated.

9. From the above advertisement, 3 things are absolutely clear that it was made known to the applicant that (a) mere possession of minimum qualification would not entitle a person to be considered; (b) UPSC would resort to shortlisting by fixing higher qualification; and (c) the candidates who claim to be having equivalent educational qualification were required to indicate the authority (with number and ate) under which it has been so treated. So the onus was on the applicant to show how he claims to be having the equivalent educational qualification.

10. Counsel for the applicant submitted that the UPSC should have examined whether the qualification possessed by the applicant was equivalent to the prescribed educational qualification or not and in support of this argument placed reliance on the judgment of Honble Madras High Court in the case of G. Selvam and Others Vs. The Chairman, Teacher Recruitment Board and Others.

11. Perusal of this judgment shows that this case was decided on the basis of rules which existed in that case.

12. The above judgment, according to us, would not advance the case of the applicant because he is bound by the terms of the advertisement, pursuant to which he had applied. In the said advertisement, it was clearly mentioned that if any candidate claims to have the equivalent educational qualification, he must annex the authority who declares it to be equivalent, therefore, the onus was on the applicant at the Ist instance to demonstrate that the qualifications possessed by him were equivalent to the required qualification as mentioned in the advertisement, then only the question of verification of same or process of application of mind by the UPSC would have arisen. In the instant case, admittedly applicant had not given any such authority along with his application, therefore, the question of applying mind by the UPSC whether it was equivalent or not does not arise when applicant had not annexed any such authority. Moreover, UPSC had clearly mentioned in the advertisement that they could resort to shortlisting the candidates by fixing higher qualifications or experience. They have specifically stated that they had received as many as 280 applications as against 5 posts as such they had adopted shortlisting criteria as follows:

(I) For SC Candidates EQ (A) + Ph.D + EQ-B (i.e. 12 years experience) For OBC Candidates - EQ (A) + Ph.D + EQ-B (i.e. 12 years experience)

(III) For General Candidates - EQ (A) raised to Ph.D + EQ-B raised to 16 years EQ-A + EQ-B raised to 19 years meaning thereby, the educational qualification was raised from Masters Degree to Ph.D. and applicant didnt have the essential qualification. It is not even the case of applicant that he possessed Ph.D. Since he didnt have the Ph.D., he was found as not having essential qualification.

13. The applicant has not challenged the advertisement, therefore, if UPSC had resorted to shortlisting the candidates by enhancing the educational qualification, applicant cannt still insist that he should be considered for the post on lower educational qualifications.

14. The right to shortlisting the candidates has been recognized by the Honble Supreme Court in following judgments: