Delhi High Court
Uoi vs Ms. Neelu on 23 January, 2009
Author: S.Ravindra Bhat
24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 23.01.2009
+ W.P. (C) 7652/2005
UOI ..... Petitioner
Through: Mr. Dalip Mehra and Mr. Rajiv Ranjan,
Advocates with Mr. Satvir Singh, Administrative
Officer.
versus
MS. NEELU ..... Respondents
Through: Mr. R.K. Handoo with Mr. S.P. Pandey,
Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
S.RAVINDRA BHAT, J. (ORAL)
% Heard the counsel for the parties.
2. In this Writ Petition, directed against an order of the Central
Administrative Tribunal (hereafter referred to as C.A.T.) dated 17.3.2005
ordering the petitioner to appoint the respondent - Ms. Neelu, has been in
question.
3. This Court is called upon to resolve a disagreement between two
learned Judges of a bench; Mr. Justice Mukul Mudgal held that in the
W.P. (C) 7652/2005 Page 1
circumstances of this case, the respondent should be offered appointment.
Mr. Justice J.P. Singh differed with that conclusion.
4. The brief facts are that the Management of Dr. RML Hospital issued an
advertisement on 6th & 12.9.2003 notifying applications for filling up the post
of Staff Nurse/Group 'C' in the pay scale of Rs.5000-8000/- (pre-revised), the
age limit indicated was 35 years and the essential qualification stipulated,
were either diploma in general nursing and midwifery or equivalent; or the
applicant being registered as Nurse and registered as midwife or equivalent
with any State Nursing Council.
5. It is common ground that the respondent - Neelu who applied for the
post, held a degree in Nursing with 64.1% marks. She was called for
interview, provisionally selected and issued with an appointment letter which
contained the following stipulation: -
"The candidature of the above post is provisional
subject to his/her having passed Diploma in
General Nursing and Midwifery/B.Sc. (Nursing) with
65% or more marks in aggregate."
6. It was claimed by the respondent that the stipulation of 65% or more
was not spelt out in the advertisement and its imposition at the stage of
appointment was arbitrary and unjustified.
7. The respondent, therefore, challenged the condition that it had the
effect of depriving the appointment itself. She approached the
C.A.T., which by its impugned order allowed her Application relying upon the
judgment of the Supreme Court in P. Mahendran and Ors. v. State of
Karnataka & Ors. 1990 (1) SCC 411 and other decisions. The petitioner -
W.P. (C) 7652/2005 Page 2
Union of India contended before the Division Bench that the formulation of
65% cut off marks in the aggregate in diploma in general nursing took place
before issuance of the appointment letter, although after the advertisement
had been published. Both the learned Judges i.e. Justice Mukul Mudgal as
well as Justice J.P. Singh discerned no infirmity in the stipulation and were
unanimous in the view that its prescription after the publication of
advertisement and application at the stage of appointment would not be
arbitrary.
8. Disagreement between the two learned Judges, however, arose after
the finding. Justice Mudgal was of the opinion that authorities concerned had
sufficient power to relax the essential qualification and should have
exercised it in view of the fact that the respondent - Neelu was a degree
holder having obtained 64.1%; she, thus possessed qualification superior to
what were prescribed as essential. The relevant part of that reasoning is as
follows: -
"Furthermore, the qualification prescribed for the
Staff Nurse according to the Recruitment Rules of
Willingdon Hospital and Nursing Home (Class-3 Post)
pursuant to which the advertisement dated 6th and 12th
September, 2003 were issued by the RML Hospital does
not mention 65% marks in Diploma in General Nursing
and Midwifery or equivalent. It was only in the letter of
appointment that such condition was imposed. It was
also provided by the rules that the qualifications are
relaxable at the discretion of the competent authority
in case of the candidates otherwise well qualified.
Thus, the appellant had sufficient discretion to select
respondent Neelu who had secured 64.1% in a higher
course of degree in Nursing and Midwifery that too, in
First Division, as compared to a diploma prescribed in
the advertisements, by relaxing the percentage. The
W.P. (C) 7652/2005 Page 3
respondent Neelu could thus not be rejected on the
basis of a cut off percentage for a Diploma holder
prescribed later in the appointment letter.
Consequently, the Writ Petition (C) No.7652/2005 filed
by the Union of India against the judgment of the CAT
qua the respondent Neelu is dismissed."
9. The second Judge Justice J.P. Singh concurred with the views of Justice
Mudgal in holding that the prescription of 65% after publication of
advertisement could not be termed as arbitrary or illegal. However, he
disagreed with the Justice Mudgal and declined to direct the authorities vis-à-
vis relaxation in the facts of Ms. Neelu's case. That part of the reasoning is
found in para 21 of his judgment where he stated that from whatever angle,
the Court could appreciate the contentions, the respondents did not have
any case and that the provisional offer made to Ms. Neelu had to be and was
rightly withdrawn.
10. As the above narration would disclose the disagreement between the
two learned Judges was not on the main point and controversy which was
whether 65% criteria could have been insisted upon after issuance of
advertisement. On that point both the learned Judges agreed to and held
that the criteria could be evolved and applied, at that stage. However, it was
on the question of relief that there was a disagreement. Justice Mudgal was
of the opinion that the respondent - Neelu held a superior qualification i.e.
degree in which she obtained 64.1% and that in the circumstances of the
case, the petitioner should have exercised its power of relaxation and
appointed her. The other learned Judge Justice J.P. Singh, however, was not
persuaded to agree to such course of action.
W.P. (C) 7652/2005 Page 4
11. During the course of submissions today, learned counsel for the
petitioner submitted that without being treated as a precedent, he has
instructions to state that an offer would be made to Ms. Neelu and that she
would be permitted to join. In view of this statement, the matter normally
would have been treated as academic and the petition disposed of in such
terms. However, since a reference to a third Judge has been made in view of
the disagreement, it is necessary for this Court to record its reasons.
12. In view of the facts and circumstances of the case, I am persuaded to
adopt the reasoning of Justice Mukul Mudgal for the reasons Ms. Neelu hold a
better qualifications than what was prescribed. Concededly, she is a holder
of a degree; the essential eligibility conditions stipulated for the post is a
diploma or equivalent. Although, she did not secure 65%, nevertheless in
view of the fact that she holds a superior qualification, the petitioner ought
to have exercised its discretion and allowed her to join duties pursuant to the
provisional appointment letter issued to her. The reference is, therefore,
answered in the above terms.
13. In view of the statement made by Mr. Dalip Mehra, Advocate, the
petitioner is hereby directed to issue the appointment letter/offer to the
respondent within two weeks from today.
14. The Writ Petition is disposed of in terms of the above directions.
Order dasti.
S. RAVINDRA BHAT
(JUDGE)
JANUARY 23, 2009
W.P. (C) 7652/2005 Page 5
