Umesh Verma vs The Chairman/Managing Director, ...
2008 Latest Caselaw 1905 Del

*        THE HIGH COURT OF DELHI AT NEW DELHI

+           WRIT PETITION (CIVIL) NO.8326/2005

%                          Date of Decision : October 24, 2008

Umesh Verma                                        .....Petitioner

                                   Through : NEMO

                               Versus

The Chairman/Managing Director
National Thermal Power Corporation Ltd.            ....Respondent

Through : Mr. R. R. Kumar, Advocate

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

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

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

SUDERSHAN KUMAR MISRA, J :

1. The petitioner has invoked the writ jurisdiction of this

Court under Article 226 of the Constitution of India. He is

aggrieved of the decision of the National Thermal Power

Corporation Limited ("NTPC"), rejecting his candidature for the

post of Assistant Engineer. On the last three occasions, when

the matter was taken up, there was no appearance for the

petitioner. Ultimately, judgment was reserved after hearing

counsel for the respondent.

2. An advertisement was issued in Rozgar Samachar dated

18-24th December 2004. This advertisement was taken out by

the NTPC., i.e., the respondent herein, which had initiated a

special drive for recruitment of Scheduled Tribe candidates.

Applications were invited from Scheduled Tribe candidates for

the post of Assistant Engineer in various projects of the NTPC.

All the qualifications required were mentioned in that

advertisement. It was also stated that candidates must have

one year's experience, "in executive cadre", after attaining the

qualifications prescribed. The grade and pay scale stated in the

advertisement was Rs.10750-490-15750.

3. Admittedly, at that time, the petitioner was working as an

Engineering Assistant with Doordarshan in the pay scale of

Rs.5000-8000. Since he felt that he possessed the required

qualifications and experience, he applied for the post. He

alleges that before the interview started on 18.4.2005, after

scrutinizing his documents, the concerned officer of NTPC

informed him that the post of, "Engineering Assistant", which

he was holding with Doordarshan, cannot be deemed to be a

post in the "executive cadre", as was required for appointment

to the post in question. The petitioner was, therefore, not

permitted to sit for the interview. Thereafter, a detailed

representation submitted by the petitioner in this behalf, as

also a reminder to the Chairman/Managing Director of NTPC,

did not elicit any response.

4. The petitioner has rested his case solely on the contention

that officers, such as the petitioner, working as Engineering

Assistants, carry out the same duties as those being carried out

by Senior Engineering Assistants in Doordarshan. He contends

that since Senior Engineering Assistants belong to the

executive cadre, therefore the petitioner should have been

treated at par with Senior Engineering Assistants and be

deemed to have the requisite experience in the Executive Cadre

to which the said Senior Engineering Assistants belong, and

that therefore, the rejection of his candidature merely because

the post held by him in Doordarshan did not belong to the

Executive Cadre, was bad.

5. On the other hand, the counsel for the respondent has

contended that the petitioner's candidature was rejected only

because he did not belong to the executive cadre, and for no

other reason. The respondent has relied on an office

memorandum being DPE OM No.2(48)/90-DPE(WC) dated

22.4.1991, which deals with the pay scales of unionized

workmen, to show that the pay scale to which the petitioner

belongs is in the non-executive cadre. The respondent has also

annexed a chart showing the comparable pay scales of the

Central Government and those of NTPC after the 5th Pay

Commission to further substantiate its stand that the petitioner

did not belong to the executive cadre. It is also contended that

the requirement that the candidate must have one year‟s

experience, "in executive cadre", meant that the candidate

should have worked at a post in the executive cadre; and a

candidate cannot be deemed to have fulfilled the prescribed

requirement merely because he may have carried out some of

the duties of a higher post belonging to the executive cadre.

6. In his petition, the petitioner also claims that by calling

him for the interview, the respondent had satisfied itself of the

fact that he possessed the necessary qualifications for the

advertised post, and therefore, the action of the respondent in

rejecting his candidature thereafter, is barred by the doctrine

of 'promissory estoppel' and for that reason also, the Court may

direct the respondent to appoint him to the advertised post.

7. According to Black's law Dictionary 6th Edition, the

term 'promissory estoppel' means -

""Promissory Estoppel. That which arises when there is a promise which promisor should reasonably expect to induce action or forbearance of a definite and substantial character on part of promisee, and which does induce such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise... Elements of a 'promissory estoppel' are a promise clear and unambiguous in its terms, reliance by the party to whom the promise is made, with that reliance being both reasonable and foreseeable, and injury to the party asserting the estoppel as a result of his reliance....."

In this case, the terms of the advertisement whereby interested

persons were invited to apply for the post in question, included

the following clause :-

"9. In case during the process of recruitment at any time it is revealed that the candidature of applicant does not fulfill the required conditions or the details furnish by them are wrong/untrue or any material information has been concealed, than his candidature will stand cancelled. Any of these short comings if became known after appointment, then his service could be terminated after appointment."

The above clause is also an integral part of the terms and

conditions of the offer. Consequently, the NTPC had reserved to

itself the right to cancel an applicant's candidature once it

realized that he does not possess the required qualifications.

Further, it had also reserved the right to terminate his

appointment in case this came to light after he had been duly

appointed to that post. Under the circumstances, for this Court

to accept the petitioner‟s contention that the respondent‟s

decision to invite him for the interview debars it from rejecting

the petitioner at any time thereafter for lack of the necessary

qualifications would be against the very terms of the offer. It

would result in rendering Clause 9, reproduced above, otiose.

Furthermore, even if any promise was held out to the petitioner

by the respondent by calling him for the interview, which I

doubt, it was clearly based on a mistake of fact and therefore

unenforceable. Even otherwise, it cannot be said that merely

because the respondent has correctly concluded that the

petitioner in fact does not possess the necessary experience

and therefore cannot be considered for appointment to the post

advertised, any injustice is being caused to him. In the light of

the above, and particularly in view of the aforesaid clause, it

cannot be said that the doctrine of promissory estoppel, as

elucidated above, bars the NTPC from rejecting the petitioner's

candidature at any stage once it comes to light that the

petitioner in fact does not fulfill the required qualifications.

8. It is the post of Assistant Engineer which has been

advertised by the respondent. Such a post requires a certain

level of skill, knowledge, efficiency and experience. The

requirements for such posts are decided taking into

consideration a number of factors. In addition, the persons who

are likely to possess the necessary requirements are also kept

in mind. All such persons, whether belonging to a particular

cadre or its equivalent, suitable for the post, are generally

indicated when such posts are advertised. But where no such

equivalents are given, it is not open for a candidate to seek

such equivalence by reading something in the advertisement

which is not there. In the instant case, the experience required

for the post was one year and that too, "in an executive cadre".

The expression, "cadre", is ordinarily used to denote the

permanent establishment of a regiment forming the nucleus for

expansion at need. In Dr. Chakradhar Paswan Vs. State of

Bihar, AIR 1988 SC 959, the Supreme Court has held that

even though officers may be member of the same service, but

still it is not necessary that they belong to the same cadre. It

was further held that, "In service jurisprudence, the term

„cadre‟ has a definite legal connotation. In the legal sense, the

word „cadre‟ is not synonymous with „service‟. Fundamental

Rule 9(4) defines the word „cadre‟ to mean the strength of a

service or a part of service sanctioned as a separate unit."

Similarly, in Director General of Health Services & Ors. Vs.

Bikash Chatterjee & Ors., reported as AIR 1969 Cal 525,

the expression, "cadre" has been held to mean not a post but

the strength of an establishment. In the case at hand, the posts

of Engineering Assistants and Senior Engineering Assistants

with Doordarshan are not interchangeable, nor do the

incumbents draw the same pay. Consequently, the post of

Engineering Assistants and Senior Engineering Assistants

constitute separate cadres or grades. To my mind, the

expression, "in executive cadre" used in the advertisement can

only mean that the candidate must have worked for at least one

year as a part of the executive strength of the establishment of

his previous employer. In other words, he should have held a

post that belonged to the executive cadre. This requirement

cannot be moulded to mean that one year's experience in any

cadre, with some duties and responsibility equivalent to those

in the executive cadre, would suffice. If that was the case,

nothing prevented the respondent from saying so specifically in

the advertisement.

9. It is an admitted fact that the petitioner was in the pay

scale of Rs.5000-8000. Looking to the chart annexed by the

respondent, I find that the, "executive cadre" commences in the

Central Government from a pay scale of Rs.6500-10500 and in

the NTPC the same commences at Rs.10700-15750. This leaves

me in no doubt that the petitioner was not placed in the

executive cadre in his existing employment with Doordarshan.

Even in the petition, the petitioner has neither taken the plea

that his cadre in Doordarshan is equivalent to that of the

executive cadre, nor has he placed any document on the record

to that effect. The petitioner has also not filed any rejoinder, to

challenge the correctness of the documents relied on by the

respondent.

10. In addition, I notice that although the petitioner has

stated in para 1 of the petition that the respondent had initiated

a special recruitment drive for Scheduled Castes, and that the

petitioner also belongs to a Scheduled Caste; a perusal of

annexure P-1, which is a copy of the advertisement issued by

the respondent in Hindi, uses the expression, "Anusuchit

Janjati", to denote the category, from which it intended to

recruit candidates. The expression, "Anusuchit Janjati" means

Scheduled Tribe and not Scheduled Caste. However, the

English translation annexed by the petitioner to annexure P-1

mentions, "Scheduled Caste" candidates instead. Again, in the

letter of NTPC dated 24.4.2005, which is annexed as annexure

P-2 to the petition, it is clearly stated by the respondent in

paragraph 4 that the advertisement, "was meant for

recruitment for ST category candidates exclusively." It is

therefore obvious that the petitioner who belongs to the

Scheduled Caste, and not to any Scheduled Tribe could not

have been considered for the post in question for that reason

also.

11. Under the circumstances, there is no merit in the petition

and the same is dismissed.

Sudershan Kumar Misra, J.

October 24, 2008 mb/OPN