Mrs.Naheed Chaudhary vs Union Of India & Ors.
2009 Latest Caselaw 2238 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No.4570/2008

                                         Reserved On : 19.05.2009
                                      Date of Decision : 25.05.2009

MRS.NAHEED CHAUDHARY                              ...... Petitioner
                                      Through : Mr.Rana Ranjit
                                      Singh, Advocate.

                                  Versus
UNION OF INDIA & ORS.                           ...... Respondents
                                      Through : Mr.Amitesh Kumar,
                                      Advocate          for       the
                                      respondent/UGC.
                                      Mr.V.K.Rao     with    Mr.Saket
                                      Sikri, Advocates for respondent
                                      no.2.
                                      Mr.A.S.Singh, Advocate for the
                                      respondent no.1.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        NO
3.     Whether the judgment should be reported
       in the Digest ?                                NO

V.K. SHALI, J.

1. The present writ petition has been filed by the petitioner

seeking issuance of appointment letter to the post of Assistant

Registrar with the respondent no.2/Jamia Hamdard (Hamdard

University) on the ground that the name of the petitioner was

recommended on 18.12.2008 and approved by the competent

authority for such an appointment. The petitioner has also

prayed for quashing of notification/advertisement No.11/2008

dated 22/23.4.2008 on the basis of which the said post of

Assistant Registrar was re-advertised by respondent no.2 for the

purpose being filled up.

2. Briefly stated the facts leading to the filing of the present

writ petition are that the petitioner had done her Graduation in

1989 and post Graduation in 1991 from Sultanpur (Awadh

University) UP. It is stated by the petitioner that she has been

teaching in different schools and colleges in UP and schools in

Delhi as English Teacher/Lecturer and at present she is working

at Senior Supervisor with M/s HCL Technology NOIDA. It is

alleged that in the month of October, 2007, the respondent no.2

had advertised two posts of Assistant Registrar to be filled in by

direct recruitment. Since the petitioner was desirous of seeking

appointment to the said post, she applied as she was fulfilling

the eligibility criteria. On 4th December, 2007, an intimation was

sent to the petitioner for appearing before the Selection

Committee on 18th December, 2007 in the office of Vice

Chancellor, Jamia Hamdard (Hamdard University). She was also

directed to produce her original as well as the attested copies of

the certificates.

3. The case of the petitioner is that in pursuance to the

interview held on 4.12.2007, the said Selection Committee

recommended her name at serial No.2 while as the name of one

Mrs. R.Naaz was kept at serial No.1 and recommended for the

post of Assistant Registrar. The aforesaid minutes of the

Selection Committee are alleged to have been approved by the

competent authority but as he did not receive any letter of

appointment till the month of April, she made a representation

and her husband kept on going to the office of respondent no.2

in order to find out as to why the letter of appointment had not

been issued to the petitioner. It is alleged that despite the

representation having been made on 22/23.4.2008, the

respondent no.2 instead of issuing the letter of appointment to

the petitioner had chosen to advertise the second post of

Assistant Registrar again vide advertisement No.11/2008 on

22/23.4.2008.

4. It is further stated that when the advertisement appeared,

she became suspicious and she applied under the RTI Act, 2003

and it was learnt by her at that point of time that although her

name had been kept by the Selection Committee in the panel at

serial No.2 against the two vacancies but despite this on the

same date, a decision was taken by the Vice Chancellor that only

one post be filled up and the second post be re-advertised.

Feeling aggrieved by this arbitrary and irrational action on the

part of the respondent no.2, the petitioner has filed the present

writ.

5. The respondent no.3/UGC filed its counter affidavit and

supported the case of the petitioner by making an averment to

the effect that the petitioner had been recommended against the

post of Assistant Registrar but despite this the respondent

no.2/Jamia Hamdard did not appoint her to the said post and

choose to re-advertise the same.

6. So far as the respondent no.2 is concerned, it raised

preliminary objection regarding maintainability of the writ

petition itself on the ground that the petitioner has no legal right

to seek appointment nor is there any infringement of the

fundamental right or the statutory right and therefore, the writ

petition itself is not maintainable.

7. On merits, it was averred that there was only one post of

Assistant Registrar which was advertised in October, 2007

against which the petitioner had applied during the pendency of

the selection, the second vacancy had also arisen and that is how

on 18.12.2007 when the selection process for filling up the one

vacancy was undertaken the factual position was shown in the

proceeding sheet of the Selection Committee and that the

number of vacancies available were two but the Selection

Committee had recommended only one candidate against one

vacancy which was advertised, while as the second candidate,

namely the petitioner, was kept on the panel.

8. Though the petitioner had not filed the advertisement

which was issued by respondent no.2 in October, 2007 but a

copy thereof was produced during the course of oral arguments

in which the number of vacancies were not specifically shown.

9. The stand of the respondent is that had the number of

vacancies been more than one, then the same would have been

reflected in the advertisement itself. It was also averred by the

counsel for the respondent that if one sees the proceedings of the

Selection Committee, the name of the petitioner is shown in the

panel at serial no.2 and the second candidate though found fit is

not recommended as was done in the case of one Mrs.R.Naaz.

These proceedings are signed by three experts Mr.Avais Ahmad,

Mr.R.K.Chauhan and Mr.Sunil Kumar and Professor Nafis

Ahmad Chancellor' s Nominee and Dr.S.Ahmad, Vice Chancellor

and Chairman. The proceedings show that the Selection

Committee interviewed in all 20 candidates out of total 27 and

recommended the name of Mrs. R.Naaz against the appointment

of one vacancy while as the petitioner's name was kept in the

panel. The very fact the name of the petitioner was kept in panel

as against being recommended is indicative of the fact that there

was only one vacancy and that is why the Vice Chancellor has

taken a decision to re-advertise the second vacancy and thus on

the basis of these facts, it is alleged that the writ petition

deserves to be dismissed.

10. The petitioner in his rejoinder affidavit has refuted the

averments made in the counter. It has also taken the help of the

averments made by UGC so far as the case of the petitioner for

appointment to the post of Assistant Registrar is concerned.

11. I have heard the learned counsel for the parties and

perused the record.

12. The learned counsel for the petitioner has vehemently

contended that the malafides of the respondent is evident from

the proceedings of 18.12.2007 wherein specifically it has stated

that two vacancies of Assistant Registrars were available. It is on

the basis of the said fact that it was urged that the responded

no.2 through selection Committee had interviewed as many as 20

people out of 27 and found the petitioner not only eligible but

also suitable to be appointed to the post of Assistant Registrar,

however instead of being recommended against one of the

vacancies, the name of the petitioner was shown to be on the

panel. Further on 18.12.2007 itself and a decision is taken by

respondent no.2 through the Vice Chancellor only to re-advertise

the second post. This clearly shows that the respondent no.2

was interested in obliging their own blue eyed person by re-

advertising the post which they did on 22-23.4.2008.

13. Per contra, Mr. Rao, learned counsel for respondent No.2

has vehemently contested the submission of the petitioner's

counsel. The learned counsel for respondent no.2 has also

produced an advertisement for perusal of the Court which clearly

shows that in October, 2007 on the basis of which vacancy the

petitioner had averred the total number of vacancies is not given

in respect of any of the posts advertised in the said

advertisement. Therefore, it can safely be assumed that there

was only one post in respect of which the process of recruitment

was set into motion. Since the post was advertised in October,

2007 and the interview by the Selection Committee had taken

place in the middle of December, 2004, one more post having

fallen vacant, it was reflected by way of factual position in the

proceeding sheet of the Selection Committee.

14. There seems to be merit in the contention of the counsel for

respondent no.2 that second post has been fallen vacant after

the advertisement for one post was given. The factual position

shows only the proceedings before the Selection Committee by

mentioning the total number of vacancies as two. It is further

urged by him that the very fact that the name of the petitioner

was not recommended and was only shown in the panel fortifies

that there was only one post, which was intended to be filled up.

Had the petitioner been found to be suitable and there were two

posts requiring to be filled up, the name of the petitioner instead

of being shown in the panel would have been recommended for

appointment like the name of Ms.R.Naaz, the candidate who was

recommended against the first vacancy. Since this has not been

done, therefore, it can safely be assumed that the second

vacancy had arisen only after the process of selection was set in

motion in respect of the first vacancy. Merely because the name

of the petitioner was shown in the penal does not mean that any

vacancy which falls vacant after the advertisement is floated the

same needs to be filled up by offering the same to a person whose

name is kept in panel. Learned counsel for the respondent has

cited a case titled as Excise Superintendent Malkapatnam,

Krishna District, A.P. Vs. K.B.N. Visweshwara Rao & Ors.

(1996) 6 SCC 216 wherein the Supreme Court has observed that

in respect of appointment to the public post, there should be

wide circulation in the newspaper by publication of

advertisement apart from display of vacancy on the notice board,

announcement on radio and television etc. in order to have a

wide publicity so that the best person is selected for a public

post. The said post obviously has rightfully to be filled in, by

floating a fresh advertisement in the National Daily and giving

wide publicity for recruitment to the said post as the respondent

no.2 may be deemed fit.

15. For the reasons mentioned above, I am of the considered

opinion that there was only one post of the Assistant Registrar

which was advertised by respondent no.2 in respect of which the

petitioner had applied. The said post was filled up by first

recommendee Ms.R.Naaz and having done so, it was not open for

the respondent to appoint the petitioner whose name was only on

the panel against the second vacancy of Assistant Registrar

which seems to have arisen during the pendency of the selection

process.

16. I, accordingly, dismiss the writ petition being without any

merit.

No order as to costs.

V.K. SHALI, J.

MAY 25, 2009 RN