Sanjiv Kumar Jha & Anr. vs The Chairman, Aai & Anr.
2008 Latest Caselaw 1156 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 4980/2008

      SANJIV KUMAR JHA & ANR              ..... Petitioners
               Through: Mr.Rahul Sharma, Adv.

                   versus

      THE CHAIRMAN, A.A.I. & ANR          ..... Respondents
               Through: Ms.Anjana Gosain, Adv. for AAI

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

                   ORDER

% 28.07.2008

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

1. Petitioners pray that a direction be issued to the

first respondent to exempt them from taking a typing test and

a mandamus be issued to the first respondent directing it to

interview the petitioners in compliance with an order dated

30.4.2007 passed by the Division Bench of this Court in a

batch of writ petitions, lead matter being W.P.(C) No.18661-

65/2004.

2. Backdrop facts are that a large number of workers

who were deployed to execute various works under the first

respondent has served the first respondent for varying periods

since the year 1994. The employment of these persons was

without following the mandatory selection procedure. The first

respondent proceeded to terminate their services. A batch of

writ petitions, lead matter being W.P.(C) No.18661-65/2004,

were filed. Prayer made by the writ petitioners was that a

direction be issued to the first respondent to give regular and

permanent employment to them.

3. Instant petitioners were also petitioners in the said

batch of writ petitions.

4. The writ petitions were disposed of by the Division

Bench on 30.4.2007. Consent directions were issued.

5. Relevant for the purposes of the instant petition is

direction No.3 issued by consent. It reads as under:-

"3. For Group C posts, a written objective test, which would assess the aptitude, General Knowledge, the job knowledge, proficiency in English language would be held. A Typing Test would also be held. However, those of the petitioners/terminated employees, who have qualified the typing test of the respondents earlier, would be considered for exemption. This would be applicable where the record of Typing Test passed earlier is available. In addition, candidates would be interviewed."

6. Since instant petitioners claimed right to be

appointed to a group 'C' post both took the written test

conducted by the first respondent after the Division Bench had

disposed of the writ petitions, and were successful.

7. Petitioner No.1 received a communication on

24.1.2008 informing him that he had to appear for a typing

test on 15.3.2008. Likewise, petitioner No.2 received a

communication on 24.1.2008 informing from that he had to

appear for a typing test on 17.2.2008.

8. On 11.2.20008, petitioner No.1 informed the first

respondent that he had cleared a typing test while in service

which was held on 28.7.2004. Second petitioner likewise

informed the respondent vide letter dated nil (sent in the first

week of February 2008) informing that, while in service, he too

had cleared typing test held on 26.5.2004. Notwithstanding

the receipt of the communication from the petitioners

aforesaid, which I note was accompanied by necessary proof of

petitioners having cleared the typing test as stated by them,

the first respondent required the petitioners to take the typing

test. The petitioners undertook the typing test but were not

successful. Since having failed in the typing test the

petitioners were not being called for an interview, instant

petitions were filed.

9. It is not in dispute that the letter addressed by the

first petitioner on 11.2.2008 informing that he be exempted to

retake the written test scheduled to be held on 15.3.2008 was

not processed by the first respondent till 1.4.2008. It was only

on said date that the Joint Manager (JM) sent a communication

to the Regional Executive Director informing that the first

petitioner is a beneficiary of the order dated 30.4.2007 and

that he had already passed the typing test while in service.

10. It is not in dispute that the letter addressed by the

second petitioner praying that he be exempted from taking the

typing test scheduled for 17.2.2008 was processed only on

12.6.2008 when the Manager Personnel informed the Regional

Executive Director that the petitioner had cleared the typing

test while in service prior to his termination.

11. It is urged by learned counsel for the petitioners

that the consent directions issued by the Division Bench on

30.4.2007 binds the parties and that the admitted fact was

that the petitioners had cleared the typing test while in service

under the first respondent prior to their service being

terminated, they were entitled to be exempted from retaking

the typing test. It was further urged that the petitioners

informed the first respondent, well in time, of their having

cleared the typing test. Learned counsel urged that it is a

clear case of bureaucratic inefficiency and for inefficiency of

the department, petitioners should not be made to suffer.

12. Ms. Anjana Gosain, learned counsel for the

respondents urged that the petitioners are guilty of not being

vigilant. Learned counsel urged that when consent directions

were issued on 30.4.2007, petitioners knew that they had to

clear a written test and if had not cleared a typing test while in

service before their services were terminated they had to

retake the typing test and therefore, learned counsel urged, it

was incumbent upon the petitioners to have themselves

informed the department soon after the consent directions

were issued that they had cleared the typing test. Ms. Anjana

Gosain, learned counsel for the first respondent urged that the

first respondent manages airports all over India and that the

130 writ petitioners whose writ petitions were disposed of by

the Division Bench on 30.4.2007 had worked at different

places and had taken typing tests at different places while in

service before their services were terminated and hence it was

very difficult for the first respondent to find out who had

cleared the typing test and who had not cleared the same

while in service. Learned counsel urged that a chaotic

situation would arise if this Court were to issue directions to

the first respondent to interview the petitioners

notwithstanding that the petitioners had failed the typing test

held in the month of February and March 2008. Lastly, learned

counsel submits that the petitioners having undertaken the

typing tests held in the month of February and March 2008 and

having failed, cannot turn around and claim exemption.

13. Having considered the rival submissions it need

hardly be emphasized that pursuant to the consent direction

No. 'c' issued by the Division Bench vide order dated 30.4.2007

the petitioners would certainly be entitled to be exempted

from retaking a typing test inasmuch as admittedly, when in

service before their services were dispensed with, both

petitioners had cleared the typing test. Further, it is not the

case of the first respondent that it ever prepared the list and

notified the same to all concerned that the persons mentioned

in the list are the ones who are entitled to be exempted from

taking the typing test. In the absence of any such information

given to the persons affected I fail to appreciate as to how

could anyone have thought that the department i.e. the first

respondent would not pay heed to their letters informing that

they had cleared the typing test. It wold have been a different

scenario if the department had prepared a list recording

names of the persons who as per the department were entitled

for exemption to retake the written test and had circulated the

same and the petitioners had not filed objections thereto. It

need hardly be reemphasized that both petitioners informed

the first respondent well in time i.e. much before the typing

tests were held that they had already cleared the typing tests

and were thus entitled to be exempted from retaking the

typing test. As noted above, the officers of the first

respondent remained highly negligent in processing the letters

written by the petitioners. As noted above the two letters

written by both petitioners were processed after over two

months. By that time the date of the written tests were over.

14. It has to be noted that when petitioners were

informed vide letter dated 24.1.2008 that they had to take the

typing test, a letter dated 24.1.2008 was issued by the

Executive Director (D & A) to all the Regional Directors

circulating a list of candidates who, as per the record of the

department, had cleared a typing test when in service. Thus,

the list of candidates who were exempted from taking the

typing test was circulated for the first time on 24.1.2008. This

was the first opportunity for the petitioners to request the

department to take corrective action, which they did.

15. Further, in the letter dated 24.1.2008 the

department itself wrote:-

"i.) In the case of 5 petitioners(Annexure I) we may inform the concerned REDs to grant them exemption in pursuance of Courts, directive as in their case the record of their qualifying the typing test is available.

ii) In respect of the 10 petitioners we may send the documentary evidence submitted by these petitioners through their advocate to the concerned REDs, for considering grant of exemption from appearing in the typing test after obtaining an affidavit that in case it comes to the notice of the Appointing Authority at any stage in the event of their appointment, that they had not qualified the typing test earlier, or the documents produced by them are not genuine, their appointment will be liable to be terminated on this ground alone, in addition to any other action warranted under the rules of the Authority. The draft of the affidavit will also be sent with the above instructions to maintain uniformity.

iii) Any other similar cases coming to notice prior to the typing test will be dealt with as in (i) & (ii) above, depending upon the category in which they fall."

16. Direction (iii) is relevant. The Regional Directors

were directed to grant exemption to the candidates whose

entitlement for exemption came to the notice prior to the date

of the typing test.

17. Admittedly, petitioners brought to the notice of the

department prior to the date notified for the typing test that

having already cleared the same they were entitled to be

exempted from retaking the test.

18. That the petitioners subjected themselves to the

typing test in the month of February and March 2008 is neither

here nor there for the reason it is not a case where the

petitioners voluntarily appeared at the typing tests and took a

chance. The rule of law that a person cannot participate in a

process of selection and take his chance and at the same time,

on being unsuccessful cannot question the selection process

would not apply in the facts of the instant case inasmuch as

the petitioners protested against their being subjected to a

written test well before the test was conducted.

19. On the plea of administrative chaos, it is no doubt

true that while exercising the discretionary writ jurisdiction,

Courts do examine question of administrative chaos or effect

of unsettling the settled position, but for that cogent material

must be brought before the Court indicating the so called

administrative chaos likely to occur if directions are issued by

the Court as prayed for by the petitioners.

20. I fail to understand what administrative chaos would

result. All that has to be done is to reconvene the Interview

Board and subject the petitioners to the process of being

interviewed. At best, it would be a case of some

administrative inconvenience caused to the first respondent.

Certainly not administrative chaos.

21. I thus dispose of the petition declaring that the

petitioners were not liable to be subjected to any further typing

test. I direct the first respondent to reconvene the Interview

Board/Panel and call both petitioners for an interview and after

interviewing the petitioners pass necessary orders required by

law on the basis of the policy of the respondent and in light of

the consent directions issued by the Division Bench on

30.4.2007 disposing of the batch of writ petitions, lead writ

petition being W.P.(C) No.18661-65/2004.

22. The process be completed within a period of 12

weeks from today.

23. No costs.

PRADEEP NANDRAJOG, J.

JULY 28, 2008 mm