Sec., U.P.S.C. & ANR.
Vs. S. Krishna Chaitanya
J U D G M E N T
ANIL R. DAVE, J.
1.
Leave
granted.
2.
Being
aggrieved by the Judgment and Order dated 7.2.2001 passed in W.P. No.33367 of
2010 by the High Court of Andhra Pradesh at 2Hyderabad, confirming the Order
dated 1st September, 2010, passed by the Central Administrative Tribunal, Hyderabad
Bench at Hyderabad, this appeal has been filed by the appellants - the Secretary
and the Joint Secretary of Union Public Service Commission (UPSC).
3.
According
to the case of the respondent, being desirous of taking Civil Services Examination,
2010, he had filled up his application form and had sent the same to UPSC
through DTDC Courier and Cargo Ltd. The respondent had handed over his application
form to the above named courier on 28th January, 2010, and the courier had intimated
to the respondent that the application form was delivered to UPSC on 29th
January, 2010. Thus, according to the respondent, his application form had been
duly received by UPSC and, therefore, he was expecting his admission certificate
but as he had not received it even in the month of April, 2010, he had made a
representation to the appellants on 20th April, 2010, making a grievance with
regard to non-issuance of admission certificate to him. In pursuance of the
aforestated representation made by the respondent, a letter dated 23rd April,
2010, was addressed to the respondent whereby he was informed that his
application for Civil Services Examination (Preliminary), 2010 had not been
received by the appellants and the respondent was also requested to furnish
acknowledgment card duly stamped by UPSC to enable the appellants to take
further action in the matter.
4.
As
the respondent had not received any acknowledgement card from the appellants, the
respondent rushed to the Central Administrative Tribunal, Hyderabad, by filing
O.A. No.470 of 2010 praying inter alia for an interim relief to the effect that
the appellants be directed to furnish an admission certificate to the
respondent so that the respondent can take the examination. By an interim order
dated 12th May, 2010, the Central Administrative Tribunal directed the respondent
to submit a copy of his application form to the appellants and directed the appellants
to issue an admission certificate to the respondent so that the respondent can
take the examination. It was clarified that the admission certificate would be
subject to the final result of the said original application.
5.
In
pursuance of the aforestated interim order passed by the Central Administrative
Tribunal (CAT), the respondent had filed another application form which was received
by the appellants around 17th May, 2010 and in pursuance of the said
application form, an admission certificate was issued to the respondent and he took
the Civil Services Examination (Preliminary).
6.
The
aforestated original application was finally heard by the CAT and by an Order dated
1st September, 2010, the application was allowed, whereby the appellants were directed
to declare result of the respondent and if he was found qualified, he should be
permitted to take the Civil Services Examination (Mains), 2010. While allowing
the application, the Tribunal had considered reply filed on behalf of the
appellants. It was stated in the reply filed on behalf of the appellants that
no application form from the respondent was received by the appellants. The respondent
had specifically stated that his application form bearing No.37573985 had been submitted
through the courier named hereinabove to the appellants on 29th January, 2010 at
4 p.m.
The respondent had mainly
relied upon an acknowledgement given to him by the courier to the effect that his
application form had been delivered to the appellants on 29th January, 2010 at
4 p.m. and an affidavit had also been filed in support of the said averment by Shri
V.S. Kumar Raju, Manager, Administration, Regional Office of DTDC, Hyderabad. The
aforestated averments of the respondent were specifically denied by the deponent
of an affidavit filed on behalf of the appellants. While passing the final
order, the Tribunal had considered the above facts and had also observed about two
possibilities - either the application form of the respondent was misplaced in the
office of the appellants or the courier agency had failed to deliver the
application form of the respondent to the appellants.
The Tribunal did not come
to the final conclusion that the application form of the respondent was
delivered to the appellants or the appellants in fact had received the
application form of the respondent. Though the Tribunal observed in its order
that it was difficult to come to a definite conclusion that the application form
of the respondent was in fact received by the appellants, the Tribunal gave a
final direction to the appellants to declare the result of the respondent and if
he was found successful in the Civil Services Examination (Preliminary), he
should also be permitted to take the Civil Services Examination (Mains) and
should also be permitted to appear for interview. Thus, the application filed by
the respondent was allowed by the Tribunal by the order dated 1st September, 2010.
7.
The
aforestated order of the Tribunal was challenged before the High Court by the appellants
by filing Writ Petition No.33367 of 2010. After hearing the concerned advocates
and after considering the above facts, the High Court disposed of the petition
by observing that the respondent be permitted to take the Civil Services
Examination (Mains) and should also be permitted to appear for the interview,
if he is qualified in the Civil Services 6Examination (Mains). With the aforesaid
observations, the petition was disposed of by the High Court.
8.
It
is pertinent to note that during the pendency of the aforesaid proceedings, the
respondent took the Civil Services Examination (Mains) and also appeared for the
oral interview. The final result has not been declared and it has been retained
by the appellants in a sealed cover. Interlocutory Application No.1 has been
filed by the respondent before this Court praying for directions to the appellants
to declare the result of the respondent and keep a post vacant in a particular
cadre so as to enable him to join the service. The said application is also
pending for hearing.
9.
Mr.
Parag P. Tripathi, learned Additional Solicitor General appearing for the
appellants submitted that the impugned order of the High Court confirming the
order of the Tribunal is absolutely unjust and improper especially in view of
the fact that neither the Tribunal nor the High Court had come to any final
conclusion that the application form of the respondent was in fact submitted to
the appellants.
10.
The
learned counsel apprised us of the procedure with regard to acceptance of application
forms and he had also kept the entire relevant record pertaining to the application
forms regarding the Civil Services Examination, 2010 in this Court. He explained
to us as to how an application form was being received by the appellants. He
submitted that as per normal practice of the appellants, whenever any application
form pertaining to the Civil Services Examination is sent by post, the
candidate sending it by post is supposed to enclose a self addressed acknowledgement
card, with postal stamp affixed, along with the application form. The said acknowledgement
card is returned by the appellants to the concerned candidate with a distinct numerical
mark affixed thereon. The acknowledgement card is sent by post to the concerned
candidate. If any application form is received by the appellants either through
hand delivery or through a courier, the person who hands over the application form
to a representative of the appellants at a particular counter, would be given an
acknowledgement card after affixing a stamp having a distinct numerical mark.
11.
He
further stated that a facsimile of each stamp having distinct numerical mark is
also retained by affixing it in a register maintained by the appellants so that
in an event of any effort to forge the acknowledgement mark, fraud can be
detected easily. The register containing such marks and record pertaining to
the applications received on each day was placed before this Court for its
perusal.
12.
According
to the leaned Additional Solicitor General, in view of the aforestated procedure,
if the application form of the respondent bearing No.37573985 had been received
by the appellants, an acknowledgment card ought to have been received by the courier's
representative, who had personally handed over the application form to a representative
of the appellants. He further submitted that according to the respondent, his
application form was submitted on 29th January, 2010 at 4 p.m. A list of all
applications, which had been received on 29th January, 2010, was shown to this
Court but in the said list, there was no reference to the application form bearing
no.37573985, belonging to the respondent. He, therefore, submitted that in fact
the application form of the respondent had not been received by the appellants.
13.
The
learned counsel for the appellants further submitted that 100 application forms
and record pertaining thereto is retained in one separate packet and he also explained
the system whereby all application forms are received and processed by the appellants.
Even in the packets containing application forms received on 29th January, 2010,
the respondent's form was not found.
14.
The
learned counsel further submitted that as the application form of the
respondent had never been received by the appellants, it would 9not be proper
to declare result of the respondent because as per the case of the appellants, the
form of the respondent was never submitted to the appellants. In such an event,
declaration of the result of the respondent would be absolutely unjust and
would set a wrong precedent. He, therefore, submitted that the appeal be allowed
and the judgment of the High Court confirming the order of the Tribunal be
quashed and set aside.
15.
On
the other hand, Mr. L. Nageshwara Rao, learned senior counsel appearing for the
respondent mainly submitted that the respondent had forwarded his application
form through DTDC Courier and Cargo Ltd. and the courier had delivered the form
to the appellants on 29th January, 2010. He also relied upon an affidavit filed
by a responsible officer of the above named courier agency stating that the
respondent's application form was delivered to U.P.S.C. on 29th January, 2010.
16.
He
further submitted that there was no reason for the respondent to make any false
averment with regard to submission of the application form because the respondent
was quite serious about the examination and in fact he had passed the Civil Services
Examination (Preliminary) and the respondent was quite hopeful of even succeeding
in the Civil Services Examination (Mains) and oral interview. He further submitted
that there was no reason for the courier agency not to deliver the application
form of the respondent and there was no reason for a responsible officer of the
courier agency to file a false affidavit supporting the respondent to the
effect that his application form had been submitted to the appellants.
17.
The
learned counsel further submitted that by declaration of the result, there
would be no harm to anyone because if the respondent is not declared
successful, he would not get any benefit but if in fact he is found successful
in the examination as well as in the oral interview and if he is not given
benefit of doubt, career of a bright young person would be ruined. He, therefore,
submitted that the judgment of the High Court confirming the order of the
Tribunal is just and legal and, therefore, the appeal should be dismissed.
18.
We
have heard the learned counsel at length and have also meticulously gone
through the relevant record produced before this Court by the learned
Additional Solicitor General.
19.
It
is pertinent to note that the respondent, at no point of time, had adduced any
evidence before the Tribunal or even before this Court to the effect that the appellants
had received the application form of the respondent bearing no.37573985.
20.
Right
from the beginning i.e. the stage at which an original application was filed
before the Tribunal, the respondent had relied upon an affidavit filed by the Manager
Administration, Regional Office of the DTDC Courier and Cargo Ltd., having its branch
office at Hyderabad. According to his affidavit, the respondent's application form
had been delivered to the appellants on 29th January, 2010. The application
form had not been delivered by him personally but it was delivered by an
employee of the above named courier agency and so as to substantiate his say, he
had relied upon the delivery Run Sheet No.12878919 dated 29th January, 2010. The
said run sheet is a part of the record. Upon perusal of the run sheet, we do not
find any acknowledgement given by any of the officers of the appellants to the effect
that an application form of the respondent was received by the appellants. The said
run sheet incorporates numbers of consignments which had been addressed to UPSC,
Shahjahan Road, New Delhi. Beyond numbers of five different consignments and
name of UPSC, to whom the consignments were to be sent, there is no indication
on the said run sheet that the said consignments were received on behalf of
UPSC.
21.
In
our opinion, on the basis of the aforestated record, by no stretch of
imagination one can say that the respondent's application form had been
received by the appellants.
22.
As
the case involves a career of a young man, who can turn out to be a good civil
servant, we had very meticulously gone through the record maintained by the appellants.
Looking to the system which is being followed by the appellants, we find that the
said system is very comprehensive and flawless. It is very clear that if the
application form of the respondent had been received by the appellants in the
manner provided, it would have been recorded somewhere. Even the eight digit
number of the application form of the respondent has not been recorded
anywhere. Receipt of an application form through a courier is treated as `hand
delivery' by the appellants. In case of receipt of an application by hand
delivery, on the spot, an acknowledgement card stamped with a distinct
numerical mark is handed over to the person who delivers the application form. If
the application form had been delivered by a representative of the courier
agency to the office of the appellants, there was no reason for the appellants not
to give a duly stamped acknowledgement card bearing a distinct numerical mark. No
such acknowledgment card, duly stamped, could be produced by the respondent or by
the courier agency. Thus on perusal of the record and looking the facts of the
case, we come to a conclusion that no proof could be submitted by the
respondent that the application form was received by the appellants.
23.
It
is pertinent to note here that while passing the final order, 1even the Tribunal
was not sure whether the application form of the respondent was received by the
appellants. The Tribunal, in para 8 of its final order dated 1st September,
2010, has observed as under: "It is quite possible that the applicant's application
had been misplaced. It is also quite possible that the courier agency failed to
deliver the application form of the applicant at the respondent's office .Thus,
even while giving final direction to the appellants with regard to permitting the
respondent to take the Civil Services Examination, the Tribunal had not come to
a definite finding and specific conclusion that the application form of the
respondent was in fact received by the appellants but the same had been
misplaced by the appellants. In our opinion, in such a set of circumstances, it
would not be proper to direct the appellants to permit the respondent to take the
examination especially when there was nothing on record to show that the
respondent had submitted his application form to the appellants.
24.
We
also record that there was some negligence on the part of the respondent. The
learned counsel appearing for the appellants had drawn our attention to the
advertisement given by UPSC inviting applications from the candidates who were desirous
of joining civil service and taking 1examination for that purpose. Clause 7 of
the said advertisement relating to acknowledgement of application is reproduced
hereinbelow: "7. Acknowledgment of applications: Immediately on receipt of
an application from a candidate, the Acknowledgment Card submitted by him/her alongwith
the Application Form will be dispatched to him/her by the Commission's Office duly
stamped in token of receipt of his/her Application. If a candidate does not receive
the Acknowledgement Card within 30 days, he/she should at once contact the Commission
by quoting his/her Application Form No.(8 digit) and name and year of examination.
Candidates delivering the Application form in person at the Commission's Counter
will be issued Acknowledgment Card at the Counter itself. The mere fact that a candidate's
application has been acknowledged by the Commission does not mean that his/her candidature
for the examination has been accepted by the Commission. Candidates will be informed
at the earliest possible about their admission to the examination or rejection of
their application."
25.
According
to the respondent, he had forwarded his application form through the
aforestated courier on 28th January, 2010. If the respondent did not receive
any acknowledgment for a period of 30 days from the date on which he had forwarded
his application form, he ought to have made necessary enquiry in the office of
the appellants. Even according to the case of the respondent, for the first time
on 20th April, 2010, he made an enquiry about his application form as he had not
received the acknowledgment card from the appellants. As stated in the aforestated
clause no.7, as a prudent candidate, the respondent ought to have made enquiry
latest by the end of February, 2010, but for the reasons best known to the respondent,
he waited upto 20th April, 2010 to make an enquiry whether his application form
was received by the opponents. In our opinion, no vigilant student aspiring to become
a responsible officer of the State would remain so indifferent so as not to
make any enquiry for more than two months. It is also pertinent to note that
the respondent was not taking the examination for the first time. According to him,
he had taken the examination earlier also but unfortunately he was not
successful. Thus, he was having experience about the way in which the
application form is filled up, how that is to be submitted and the way in which
acknowledgement card is sent by the appellants. In our opinion, this negligence
on his part has resulted into his sufferance and he himself is only to be blamed
for the events.
26.
For
the aforestated reasons, we are of the view that the appellants cannot be directed
to declare the final result of the respondent, especially when his application
form had not been received by the appellants within the period prescribed. We
ignore the second application form which was submitted by him in pursuance of
the direction given by the Tribunal.
27.
We
may add here that this Court has observed time and again that an interim order
should not be of such a nature that by virtue of which a petition or an
application, as the case may be, is finally allowed or granted even at an interim
stage. We reiterate that normally at an interlocutory stage no such relief
should be granted that by virtue of which the final relief, which is asked for
and is available at the disposal of the matter is granted. We, however, find
that very often courts are becoming more sympathetic to the students and by interim
orders authorities are directed to permit the students to take an examination
without ascertaining whether the concerned candidate had a right to take the
examination. For any special reason in an exceptional case, if such a direction
is given, the court must dispose of the case finally on merits before
declaration of the result. In the instant case, we have found that the respondent
not only took the preliminary examination but also took the main examination
and also appeared for the interview by virtue of interim orders though he had no
right to take any of the examinations. In our opinion, grant of such interim orders
should be avoided as they not only increase work of the institution which conducts
examination but also give false hope to the candidates approaching the court.
28.
For
the reasons stated hereinabove, we allow the appeal by quashing and setting
aside the judgment delivered by the High Court as well as the order of the Tribunal
with no order as to costs. The Interlocutory Application filed by the
respondent is also rejected.
.............................................J.
(Dr. MUKUNDAKAM SHARMA)
.............................................J.
(ANIL R. DAVE)
New
Delhi
August
5, 2011.
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