TaxTMI 
TaxTMI 
2014 (5) TMI 862
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....andidate on the basis of merit, in the suitability test, as per the table shown in paragraph no. 13 of the judgment of the Tribunal. The Tribunal has further directed that so long as the candidate selected as per its order, does not join the post, Ms. Suman Devi would be allowed to continue. 2. While entertaining the present petition, an interim protection against the order of the Tribunal was granted, which has continued to remain in operation. 3. We have heard Sri B.K. Singh Raghuvanshhi, learned counsel appearing for the Union of India and its officials , Sri Keshari Nath Tripathi, learned Senior Advocate, assisted by Sri N.K. Chaturvedi, for Ms.Suman Devi and Sri Rakesh Pandey, Advocate appearing for the applicant/ contesting Opp. Party, Gyan Prakash. 4. Office of Chief Commissioner, Central Excise and Services published an advertisement dated 21.12.2005 in daily news paper ' Dainik Jagran', inviting applications under the Sports Quota for appointment to the post of Inspector Central Excise. Distinguished sports persons from the field of Lawn Tennis/Athletics were permitted to apply, who possess a graduation degree or equivalent and fulfill the other qualificat....
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....e Senior Atheletics Championship, 2005, first place in 11th Federation Cup National Senior Athletics Championship, 2005, secured second position in 10th Asian Junior Athletic Championship, 2002, represented India in 9th SAF Games, 2004 and also represented India in 16th Asian Athletics Championship, 2005, whereas Gyan Prakash Singh only had certificate of Inter University Level for the year 1991-1992 and 1992-1993. 8. The judgment of the Tribunal has been challenged on the ground that the primary consideration for selection was to promote and incentivise sports in the department and, therefore, extent of attainment in the filed of sports was the primary consideration for selection whereas the Tribunal by treating it to be merely a eligibility criteria, ignored the extent of attainment and thereby the respective merit in the field of sport has been given a complete go-by. It was further contended that the written test and interview were merely qualifying in nature and Tribunal misconstrued the advertisement and departmental circulars to hold it as suitability test and thereafter to award appointment solely based on it, completely ignoring the sports achievement, which was held to....
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....nd thus, required that the various sports/games should first be identified and applications from eligible candidates be called by advertising the post as per normal practice, by keeping the eligibility criteria in conformity with the provisions of recruitment rules, the instructions issued by the Board and Directorate of Personnel and Training on the subject. Clause (iv) & (v) of the circular dated 9.3.1987 are reproduced hereinafter:- "(iv) While determining the proficiency in sports; the levels at which the candidates have participated in the respective disciplines and their current form should also be taken into account. For this purpose, they should also be subjected to practical/field test to be conducted by an expert in the respective discipline. Having regard to the requirements of the Collectorates and the proficiency of the candidates in their respective sports disciplines; a list of candidates in the order of their ranking should be drawn up; (v) All the listed candidates should be subjected to a written test which should be a purely qualifying one. The pattern for the written test should be on the lines of the recruitment test conducted by the Staff Selection Commi....
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....iversity/State School at the level mentioned in categories (b) to (d) but could not win a medal or position, in the same order of preference. Note 1. In the event of tie those who have secured a higher position or won more than one medal may be given the preference. Note 2. Participation in individual and team event/item may be given the same preference. Note 3. No preference may be given for winning more than one Medal/position. Note 4. In case of any doubt about the status of a tournament, the matter will be decided by the Deptt. of Pers & Trg. In consultation with Deptt. of Sports & Youth Affairs." 12. From the perusal of the advertisement as well as the circular of the department, as modified from time to time, it is abundantly clear that consideration of candidature of the candidates, who fulfill the eligibility condition has to be in the order of preference, as outlined in the circular dated 4.5.1995. Accordingly, first preference is to be given to those candidates, who represented the country in an international competition with clearance of Department of Sports and Youth Affairs. Next preference is to be given to those, who represented a State/Union Territory....
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.... test, is merely to test the eligibility, then in that situation preference contemplated in circular dated 4.5.1995 on the basis of sports attainment is rendered nugatory. Similarly, if the written test and interview is held to determine the suitability then the conditions in the advertisement as well as the aforesaid circulars stating such test to be of qualifying in nature looses significance. Thus, the direction of the tribunal to exclude the marks obtained in the field test and to select the candidates only on the basis of marks obtained in the written test and interview is clearly in teeth of the departmental circular and advertisement itself. 16. From the materials brought on record before the tribunal, it seems that the department had for selecting the candidate taken note of the sports attainment, current level of performance etc. on the basis of field test and treated the written test as purely of qualifying in nature. The department found that all the 11 eligible candidates, who had appeared in the written test, had qualified and after subjecting them to interview the final list was drawn, in which Suman Devi had scored highest marks of 160, whereas the applicant Gyan ....
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....a for appointment under the sports quota. 19. The approach of the tribunal, in treating the level of sports attainment as an aspect of eligibility, has rendered the extent of proficiency in sports, totally irrelevant, inasmuch as all applicants under sports quota, irrespective of their achievement and extent of attainment in the field of sports are to be treated alike. A higher standard of attainment in the field of sports constituted a separate class distinct from those with less meritorious attainment in the field of sports. The tribunal, therefore, by treating levels of attainment in the field of sports as equal has held unequals to be equal, thereby infringing Article 14 of the Constitution of India. 20. It cannot be doubted that ability of selected candidate to discharge official duties was extremely relevant. In order to secure it, the department had already prescribed the fulfillment of eligibility criteria in terms of the recruitment rules i.e. requirement of a candidate being graduate, qualifying the written test and successfully facing the interview. In the instant case, the selected candidate possessed graduation degree and had qualified written test and also clear....