Dr. Prem Lata vs Govt. Of Nct Of Delhi And Anr.
2007 Latest Caselaw 945 Del

JUDGMENT

Kailash Gambhir, J.

Page 1403

1. By way of this writ petition the petitioner is seeking directions against the respondents to appoint her as Member (Female), District Forum, Delhi pursuant to advertisement dated 06.04.2006. The facts of the case as set out in the petition are that the petitioner was earlier selected for the post of Member (Female), District Forum, Delhi on which post she continued to work till 18.10.2006. In the meantime, on 06.04.2006 respondent No. 2 through an advertisement invited applications from the suitable candidates for appointment on the post of Member (Female), District Forum, Delhi. The total number of existing vacancies were three and the last date of receipt as notified in the advertisement was 21.04.2006. In the month of April, 2006 the petitioner had gone abroad when the said advertisement was published and she had applied against the said post vide her application dated 01.05.2006 after coming back to India on 28.04.2006. The petitioner had submitted her application for the said post with a covering letter seeking condensation of delay in submitting her application. As per the petitioner approximately 54 candidates had applied for the said post, out of which only 45 applications were found in order and accordingly, interview letters were issued only to 45 candidates including the petitioner also. Initially the date of interview was fixed as 16.09.2006 but later on the same was changed to 08.11.2006 when besides other candidates petitioner also appeared before the Interview Board, comprising of three members including the Chairman. On 28.12.2006 the respondents issued appointment letter to two selected candidates against three vacancies. The petitioner after having come to know about the declaration of selection of two candidates immediately made a representation to respondent No. 2. When no action was taken on the representation of the petitioner, the petitioner has preferred the present petition seeking her appointment on the said post of Member (Female), District Forum, Delhi.

2. I have heard Mr. V.K. Rao, counsel for the petitioner and Ms. Geeta Luthra, counsel for the respondents. Counsel for the petitioner has contended that Page 1404 the petitioner had moved her application just after ten days from the expiry of the last date and she had filed her application along with the covering letter seeking condensation of delay of ten days. The submission of counsel for the petitioner is that once the petitioner was called for interview vide letters dated 31.08.2006 and 15.10.2006 pursuant to which the petitioner, in fact, appeared in interview on 08.11.2006 then the respondents are estopped under law to now change their decision. Counsel has further stated that it is only after the decision to condone the delay, the petitioner was called for an interview and this decision of the respondent was unqualified. Another contention which has been raised by the petitioner is that the petitioner being erstwhile member of District Forum was eligible for re-appointment for another term of five years and, therefore, case of the petitioner could not have been treated as a case of fresh appointment. The counsel has invited my attention to Sub-clause (1)(a) and proviso of Clause (2) of Section 10 of the Consumer Protection Act, 1986 so as to distinguish the petitioner's case being that of re-appointment from the other direct candidates. It would be relevant to reproduce Section 10 of the Consumer Protection Act, 1986 as under:

10. Composition of the District Forum - (1) Each District Forum shall consist of

(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;

(b) two other members, one of whom shall be a woman, who shall have the following qualifications, namely:

(i) be not less than thirty-five years of age,

(ii) possess a bachelor's degree from a recognised university,

(iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy industry, public affairs or administration:

Provided that a persons shall be disqualified for appointment as a member, if he

(a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or

(b) is an undischarged insolvent; or

(c) is of unsound mind and stands so declared by a competent court; or

(d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or

(e) has, in the opinion of the State Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or

(f) has such other disqualifications as may be prescribed by the State Government;

Page 1405

(1A) Every appointment under Sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:

(i) President of the State Commission Chairman

(ii) Secretary, Law Department of the State Member

(iii) Secretary, in charge of the Department dealing with consumer affairs in the State Member:

Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.

(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier;

Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfillls the qualifications and other conditions for appointment mentioned in Clause (b) of Sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee:

Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in Sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of Sub-section (1A) in place of the person who has resigned:

Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.

(3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government:

Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum.

3. Counsel for the petitioner has also contended that under Sections 17-B and 24-B of the Consumer Protection Act, 1986, the administrative control over all the forums under the District & State is with the State Commission and the decision to condone the delay in filing the application was taken by the respondent itself and, therefore, the said decision could not have been Page 1406 changed after calling the petitioner for interview. The counsel for the petitioner further contended that there was no lapse on the part of the petitioner in not timely making an application due to her being abroad during that period and she was totally ignorant about the advertisement, therefore, could not have been expected to submit the application within the specified period.

4. On the other hand, Ms. Geeta Luthra, counsel for respondents has contended that in the advertisement it was clearly stipulated that the application of the interested candidates for the post of Member (Female), District Forum, Delhi should reach not later than 21.04.2006 and all applications received after last date were liable to be rejected. Counsel for the respondents has also contended that the last date as stipulated in the said advertisement cannot be extended by the Court while exercising the power of writ jurisdiction under Article 226 of the Constitution of India as such power only falls within the domain of the Executive in due discharge of their administrative duties. Counsel for the respondents has also placed reliance on the judgment in the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. . In this case before the Supreme Court the issue was raised for grant of relaxation to the overaged candidates who sought direction for regularization of their services by filling up the unfilled posts and the Court has held that it would be for the appropriate Government to relax the age requirement and the petitioners have to stand in the queue and get their selection through the PSC. Para 4 of the said judgment is referred as under:

It is then contended that the petitioners have turned overaged and, therefore necessary direction may be given to regularise their service by filling up the unfilled posts. Even that relief also cannot be granted. If the petitioners have turned overaged on the date of recruitment, it would be for the appropriate Government to relax the age requirement and the petitioners have to stand in the queue and get selection through the PSC. Thus what they get is only the right to appointment to the post.

5. It is trite law that normally the Courts do not interfere in the recruitment rules which are within the domain of legislature or the executive unless these rules are arbitrary, irrational, discriminatory or in violation of some statute or the fundamental rights of the citizens. The recruitment rules are laid down by the executive in due discharge of its administrative functions, keeping in view the job requirements of a particular post and also in conformity with the qualifications and conditions of appointment, if already laid down in a particular statute, Act, bye-laws or in executive instructions. In the present case, the question before this Court is not of recruitment rules or to cause interference in the eligibility criteria as laid down in the advertisement. On the contrary there is no dispute between the parties that the petitioner duly fulfillls the eligibility criteria for appointment as a member of the District Forum. As already stated above, a short question before this Court is as to whether the respondents could have entertained the application of the petitioner although submitted beyond the last date as stipulated in the Page 1407 advertisement. Necessarily this condition of last date cannot be put at the same pedestal as that of other mandatory conditions, which makes a person eligible to apply for the said post. The fixation of last date for entertaining an application, no doubt, is an important element in the process of selection as the cut off date only determines as to whether a candidate possess the requisite qualification or experience on the cut off date or not. There can also be no quarrel on the proposition that any extension in the last date for any particular candidate will put such a candidate at an advantageous position over the others, who could not submit their application before the last date as prescribed in the advertisement. It is an admitted fact that the present case of the petitioner is not that of appointment as envisaged under Sub-section 1A of Section 10 of the Consumer Protection Act, 1986, but of a re-appointment as contemplated under proviso of Sub-section 2 of Section 10 of the Consumer Protection Act. In the advertisement also the applications have been invited from suitable candidates for appointment on whole time basis for post of Member (Female), District Forum and the said advertisement does not specifically deal with the reappointment of eligible persons, who have already served on the said post and are eligible to seek their re-appointment under the aforesaid Sub-section 2 of Section 10 of the Consumer Protection Act. The respondents have nowhere denied or disputed the eligibility of the petitioner for re-appointment on the said post and, therefore, the case of the petitioner indisputably is on a better footing then all other direct candidates seeking appointment. Although in the advertisement it is mentioned that the applications of all those received after the last date of receipt are liable to be rejected summarily but this condition stands diluted by the respondents itself by entertaining the application of the petitioner, although, submitted late. In the present case, the petitioner was called for interview without any reservation or condition, therefore, the respondents are estopped from taking any inconsistent position and that too after the petitioner was found to be successful in the interview. The position, certainly, would have been different had the application of the petitioner not been entertained on the above ground right at the initial stage. The delay in the present case was condoned by the President of the State Commission who by virtue of Section 10 of the Consumer Protection Act, 1986 was also Chairman of the Selection Committee. On perusal of the original record, I do not find any irrationality in the decision of the President of State Commission who primarily took into consideration the fact of petitioner being already sitting member and eligible for consideration for re-appointment. Even otherwise, once the petitioner was permitted to appear for an interview, the delay in entertaining her application automatically stood condoned and there was no ground or reason to change the said decision after permitting the petitioner to appear for the interview on the ground of late submission of the application.

6. Based on the above discussion, the present petition is allowed. The respondents are directed to declare the result of the petitioner. The decision of the respondents not to appoint the petitioner on the ground of late submission of the application is set aside.