Judgment:
Manmohan Sarin, J.
1. Petitioners-Archaeological Survey of India and Union Public Service Commission by this writ petition seek quashing of the judgment and order dated 21st April, 2004 and 11th August, 2004 passed by the Central Administrative Tribunal in OA 547/2004. The Tribunal by the impugned judgment held that the respondent was entitled to the benefit of increase in the upper age limit by two years in terms of Rule 3 of the Central Civil Services and Civil Posts (Upper Age limit for Direct Recruitment) Rules, 1998 (hereinafter referred to as `Rules').
2. The said order and judgment was passed in the absence of the counsel for the petitioner and thus an application bearing M.A No. 1653/2004 was moved for recalling the order. The said application was dismissed by the Tribunal observing that there was no ground to rehear the matter and the remedy of the petitioner may lie in challenging the order in the appropriate forum.
3. This petition involves interpretation of Rule 3 of the Rules and the Note appended thereto. In the instant case, selection by U.P.S.C. is through interview. It is the petitioner's contention that benefit of relaxation of upper age limit, under the Rules is excluded, where the recruitment is through short listing or by interview or the other species as mentioned in the Note. Before we examine the text of the Rules and the advertisement for proper interpretation of Rule 3, the facts culminating in the filing of the writ petition may be briefly recapitulated.
4. Respondent-Niranjan Singh is an Assistant Archaeologist in Archaeological Survey of India (hereinafter referred to as `ASI'). He is an aspirant to the post of Deputy Superintending Archaeologist. Recruitment to the post of Deputy Superintending Archaeologist is 40% by promotion and 60% by direct recruitment through posts advertised by the U.P.S.C.
5. The advertisement in the instant case had been taken out by the U.P.S.C in the Employment News for 14-20 February, 2004, which is placed as Annexure R-1 on page 167 of the paper book. The advertisement was in respect of numerous posts in various Ministries e.g Assistant Commissioner (Animal Quarantine) Ministry of Agriculture, Senior Scientific Officer Grade I in the Department of defense Production & Supplies, Senior System Security Officer Grade II in AFHQ, Ministry of defense, Professor in Electronics & Communication Engineering (Technical) in Delhi College of Engineering etc. 16 posts of Deputy Superintendent Archaeologist in ASI, Ministry of Human Resource Development (Department of Culture), were also advertised, which appear at Sr.No.15 of the advertisement. One post was reserved for SC candidate and seven posts were reserved for OBC candidates.
6. It would be appropriate to reproduce extracts from the said advertisement which are relevant for the purposes of interpretation of Rule 3 of the Rules:
15. SIXTEEN DEPUTY SUPERINTENDING ARCHAEOLOGICSTS IN THE ARCHAEOLOGICAL SURVEY OF INDIA, MINISTRY OF HUMAN RESOURCE DEVELOPMENT (DEPARTMENT OF CULTURE). Of the sixteen posts, one post is reserved for SC candidates and seven posts are reserved for OBC candidates. QUALIFICATIONS: ESSENTIAL: A. EDUCATIONAL: I) Master's degree in Indian History/ Archaeology / Sanskrit / Persian / Parakrit/ Pali/ Arabic/Anthropology/Geology with knowledge of Stone Age Archaeology/Geology with knowledge of Plesitecene Geology of a recognized University or equivalent. II) Diploma in Archaeology from the Archaeological Survey of India or equivalent. OR Two years research experience in Ancient or or Medieval Indian History, Archaeology, Epigraphy, Museology, Architecture or any study connected with the art and Architecture of India with specialization in one or more of the following fields: a) Pre-history and Proto-History; b) Art and Architecture of Northern India (Early period) c) Medieval Monuments of Northern India and Deccan and d) Art and Architecture of South India with special preference of Temples. NOTE: Candidates selected for the posts will during the period of probation be required to undergo training as per requirement of the job prescribed by the Archaeological Survey of India and will be required to pass a departmental examination before confirmation. DUTIES: To undertake Excavations, Explorations & preservation of Monuments on Archaeological Principles, Preparation of technical reports on Monuments & Antiquities, Archaeological research in general and to assist the Superintending Archaeologist in running the office. HQ: Liable to serve anywhere in India or abroad.
7. As per the advertisement, upper age limit was relaxable up to five years for employees of Government of India and Union Territories and 10 years for SC&ST; candidates etc. The age limit for the post in question as on closing date of 4th March, 2004 was not to exceed 35 years subject to entitlement of relaxation as above.
8. The case of the respondent is that the Union Government, following the increase in age of retirement for Central Government Servants from 58 to 60 years vide OM dated 19th May, 1998, had issued a notification dated 21st December, 1998, notifying the Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment) Rules, 1998, providing for additional increase of 2 years in the upper age limit. respondent thereforee, claimed that he was eligible to the benefit of Rule 3 and the age in the advertisement should be read as 37 years for Central Government Servants. The date of birth of the Respondent is 15.9.1963 and on the date stipulated in the advertisement i.e. on 4th March, 2004, he has attained the age of 40 years. The benefit of relaxation of 2 years in the upper age limit would make him eligible for recruitment. Respondent claimed that inadvertently, the petitioner had failed to correct the age for the posts of Deputy Superintending Archaeologist while they themselves increased the age in the advertisement for the post of Assistant Archaeologist from 30 to 32 years. Hitherto in the past, the prescribed age for Assistant Archaeologist was 30 years and for Deputy Superintending Archaeologist was 35 years. Following the two years general increase in age, the petitioner increased the age for Assistant Archaeologist from 30 to 32 years but inadvertently did not increase the age of Deputy Superintending Archaeologist from 35 years to 37 years.
9. The Tribunal in the impugned judgment accepted the contention that the Department had fixed upper age limit as per the previous Rules without taking into account the notification of 21st December, 1998 in terms of which, upper age limit had been increased by two years under Rule 3. The Tribunal also relied on the advertisement issued for Assistant Archaeologist wherein the age, as noted earlier, had been prescribed as 32 years instead of 30 years being the earlier age limit. We find that the Tribunal did not examine or analyze Rule 3 and had no occasion to consider the submission of the respondent before it i.e. the petitioner herein. We have, thereforee, heard the petitioner at length on the question of proper interpretation of Rule 3 and its applicability to the respondent.
10. Let us examine whether respondent is entitled to the benefit of increase of two years in terms of Rule 3 of the Rules which was gazetted by notification of 21st December, 1998. Rule 3 of the Rules is as under:
3. Increase in the upper age limit:
The upper age limit for recruitment by the method of Direct Open Competitive Examination to the Central Civil Services and Civil Posts specified in the relevant Service/recruitment rules on the date of commencement of the Central Civil Services and Civil Posts (Upper Age limit for Direct Recruitment) Rules, 1998, shall be increased by two years.
Note:'Direct Open Competitive Examination' for the purpose of these rules shall mean direct recruitment by Open Competitive Examination conducted by the Union Public Service Commission or the Staff Selection Commission or any other authority under the Central Government and it shall not include recruitment through Limited Departmental Examination or through shortlisting or by interview or by contract or by absorption or transfer or deputation.'
11. The aforesaid Rule provides for increase of upper age limit by two years. The pre-requisite for its application is that method of recruitment should be 'Direct Open Competitive Examination' to the Central Civil Services and Civil Posts. The Note gives the meaning of the expression 'Direct Open Competitive Examination' for the purpose of the Rules. It is required to be a case of direct recruitment by open competitive examination conducted by the U.P.S.C. This being an advertisement taken out by the U.P.S.C, the condition of direct recruitment through the prescribed agency is specified. The crucial words and phrases for interpretation are 'Open Competitive Examination' and the exclusions that are provided. The exclusion provided are recruitment through any one of: Limited Departmental Examination, shortlisting, interview, contract, absorption, transfer or deputation. In the present case, we have to consider whether the selection by interview to be done by U.P.S.C would fall within the ambit of Direct Open Competitive Examination or the said mode of selection would be excluded under recruitment by interview.
12. Ms.Rekha Palli appearing for the petitioner submits that Rule 3 excludes recruitment through limited department examination, shortlisting or by interview. According to her, as the method of selection was interview, it goes out of the purview of definition of 'Direct Open Competitive Examination'. Once it ceased to be Direct Open Competitive Examination, the benefit of upper age limit would not be available. In support of her contention, she places reliance on a judgment of the High Court of Karnataka dated 29th October, 2001 in Dr. J.C. Sharma v. Union of India and ors. She submits that recruitment in the said case was also through advertisement by UPSC followed by an interview. The Karnataka High Court held that relaxation in upper age limit would not be admissible in view of embargo on recruitment through limited departmental examination or by shortlisitng or by interview.
13. Upon consideration of the matter, we are not persuaded to accept and follow the judgment of the Karnataka High Court dated 29th October, 2001 for the reasons hereinafter recorded. We are not persuaded that when public advertisements are issued inviting applications for direct recruitment but the method of selection could be screening which is followed by interview, it ipso facto would take it out of the purview of Direct Open Competitive Examination. It would be seen that a common thread which runs through the various species of exclusions is the restrictive nature of selection therein. In other words, it is the anti thesis of Open Competitive Examination e.g Limited Departmental Examination, where the number of candidates are small, short listing or recruitment by interview or by contract or by deputation or filling up vacancies by deputation or by transfer. These species of exclusion provided are those where recruitment is being done amongst internal or Departmental candidates or specified classes of candidates such as departmental candidates, deputationists, transferee etc and not through competition open to the public. We are of the view that expression 'interview' appearing in the Note has to take its context and meaning from other words namely Departmental Examination, short listing, contract, absorption or deputation. The interview being confined to these species or classes. It would not cover interview as a method of selection where candidates are invited through open advertisement and the same is duly published. Selection by interview of such candidates would not fall within the exclusion. The exclusion provided in the Note, in our view, has to be restricted in the light of principles of Ejusdem Generis.
14. The matter may be considered from another perspective. If the submission of the Petitioner, that interview as a method of recruitment would, as such stand excluded from the definition of Direct Open Competitive Competition, is accepted then differential treatment would be accorded to candidates for posts where the Direct Open Competitive Examination is written vis a vis those where the Direct Open Competitive Examination is oral i.e. interview/viva voice examination. Such differential treatment, for the purpose of granting relaxation in upper age limit as provided in Rule 3 is sans any rational reasoning or justification.
15. We may also note that as per the terms of the Advertisement, UPSC was authorized to resort to any of the following methods for restricting the number of candidates to be called for interview:
(a) Adopting as a criteria, higher qualifications and experience than the minimum qualifications prescribed in the advertisement;
(b) On the basis of experience in the relevant field;
(c ) By counting experience before or after the acquisition of essential qualifications or
(d) By holding a screening test.
16. The UPSC could adopt any of the above methods for choosing most suitable candidates out of the candidates in the Direct Open Competitive Examination for final selection through interview. It would also be relevant , in our view, to consider the legislative intent, purpose and object for which the Rule had been introduced. In this context, for the post, qualifications prescribed are of high level, being a Master's degree in Indian Hisotry/Archaeology or in other specialized subject with Diploma in Archaeology from the Archaeological Survey of India or equivalent or two years research experience. This would show that the post is of specialized nature with exceptionally high qualifications required in the candidates with specialization in their respective fields. The candidates, who may be selected are to be put on probation and to undergo training and prior to confirmation, they are to pass a departmental examination. These prima facie tend to show that essential educational qualifications and experience are of a nature where their intellectual ability or level already stands determined and established and is not required to be assessed by a written examination particularly when the recruitment age is also between 35 to 40 years. The increase in upper age limit is also correlated to the increase in the age of superannuation of Government employees from 58 to 60 years.
17. Reference may also be usefully made to the decision of the Supreme Court in K.H. Siraj v. High Court of Kerala and Ors. reported in : AIR2006SC2339 , where the Supreme Court dealt with interview as a mode of assessing the suitability of a candidate for a particular position. It was observed that 'while the written examination will testify the candidate's academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc'. Again the Supreme Court in Lila Dhar v. State of Rajasthan : (1981)IILLJ297SC observed that 'object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job avoiding patronage and favortism. Selection based on merit, tested impartially and objectivity, is the essential foundation of any useful and efficient public service. 'The Supreme Court had quoted with approval that the written examination assess the man's intellect and the interview tests the man himself. In case of services to which recruitment has necessarily to be made from persons of mature personality, interview may be the only way, subject to basic and essential academic and professional requirement being satisfied. 'To subject such persons to a written examination may yield unfruitful and negative results apart from it being an act of cruelty to those persons.'
18. In view of the foregoing discussion, it cannot be said that having regard to the qualifications, experience and requirements for the post of Deputy Superintending Archaeologist, resorting to interview as a method of selection would be arbitrary or result in taking it out of the purview of Direct Open Competitive Examination. In fact the submission of the respondent that with these qualifications, experience and requirements for the post, interview was the appropriate method of selection is a convincing submission. The method of examination is by interview and it would be for the UPSC to constitute a Selection Committee with the requisite talent, qualifications and credentials to choose the most suitable candidates. Selection by interview through a constitutional body like UPSC would not render the process non competitive in nature.
It is not necessary to dwell further on this aspect as the Central Government and the UPSC have considered holding the selection by interview as the appropriate method for selection to the senior posts. We find no reason for questioning the wisdom of the said decision or to hold that because of selection by interview, it would cease to be Direct Open Competitive Examination. Moreover, there is also merit in the submission of respondent that petitioner had given the benefit of upper age limit to the post of Assistant Archaeologist while omitting to do the same to Deputy Superintending Archaeologist. Explanationn that, it was a one time exception does not appear to hold good in view of the fact that even the subsequent and recent advertisement for the said posts contains the same relaxation.
In view of the foregoing discussion, we hold that the respondent is eligible to upper age relaxation in terms of Rule 3 of the Rules. Writ petition has no merit and is dismissed. Interim order is vacated.