Vijay Singh vs Uoi & Ors
2010 Latest Caselaw 5793 Del

5
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +   W.P.(C)No.1922/1996

                               Date of Decision : 21st December, 2010
%

      VIJAY SINGH                     ..... Petitioner
                           Through : Mr. Lekh Raj Rehalia, Adv.

                      versus

      UOI & ORS                     ..... Respondents
                           Through : Ms. Barkha Babbar, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                     NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                    NO

3.      Whether the judgment should be                            NO
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. By way of this writ petition, the petitioner has assailed his

rejection for appointment as Firemen Grade-II by the

respondents in the selection process which was conducted by

them in the year 1995.

2. The factual narration giving rise to the present writ

petition is in a narrow compass and is undisputed.

3. The respondents had issued an advertisement inviting

applications for two vacancies of Firemen Grade-II which were

civilian in defence services Group „D‟ (Non Gazetted, Non-

Industrial) posts having a pay scale of `200-3-206-4-234-EB-4-

250 and having an age limit for direct recruitment of 18 to 25

years. These vacancies were released to 9 FOD C/o 56 APO

amongst other units/depots vide the Army HQ letter dated 1st

May, 1995 for direct recruitment through the employment

exchange.

4. The writ petition is premised on a contention that Major

S.R. Chowdhary and Brigadier Asil Singh arrayed as respondent

Nos.4 and 6 had disputed the petitioner‟s qualification as well

as the certificates which were relied upon by the petitioner and

that he was denied the proper consideration. It has further

been contended by the petitioner that inasmuch as the land

belonging to the family of the petitioner in District Gurdaspur

had been acquired for defence purposes by the Government,

the petitioner was entitled to a prioritized consideration for

employment by the respondents.

5. In this background, the present writ petition has been

filed by the petitioner resting the challenge to his non-selection

on these two grounds.

6. We have carefully heard learned counsel for the parties at

length and also scrutinized the available record. Having regard

to the nature of challenge, we can deal with the first contention

of the petitioner premised on failure to consider his

qualifications or certification. We may note that the

respondents have also filed an affidavit dated 18th March, 2009

enclosing therewith the photocopy of the complete record of

the selection process commencing from the advertisement,

requisition for application from employment exchanges as well

as the Board of officers proceedings and their

recommendations before us.

7. It is pointed out on affidavit by the respondents that the

requisition in this behalf dated 6th June, 1996 was sent to the

local employment exchange at Indora, Himachal Pradesh for

sponsoring eligible candidates on 26th June, 1995 for

interview/selection for the post of Firemen Grade-II.

8. The employment exchange at Indora had circulated the

demand to other employment exchanges of District Kangra,

Himachal Pradesh. The selection process was accordingly

scheduled and date of interview was fixed for 19th July, 1995.

9. So far as two posts for which total applications have been

invited, it has been pointed out by the respondents that there

was only one vacancy in the General category while the other

one was reserved for a candidate in the Scheduled Caste

category. The petitioner had made an application for

appointment to post as a general category candidate.

10. A Board of officers consisting of Major S.R. Chowdhary as

Presiding Officer with Captain Ranjan Kumar and Captain

Manish Bakshi as members was constituted to interview the

candidates. The candidates sponsored by the employment

exchanges were interviewed on 19th July, 1995 by this Board.

11. The respondents have pointed out that the petitioner‟s

name for consideration was forwarded by two employment

exchanges and it appears that he was registered with not only

the employment exchange of Indora, Himachal Pradesh but

with employment exchange of Pathankot as well.

12. Be that as it may, there is no dispute that the petitioner

was duly called for undergoing the selection process.

13. It appears that in order to obviate any error or mistake in

scrutiny of the documents which were produced on 19th July,

1995 before the Board of officers, all candidates were recalled

on 7th August, 1995 when a scrutiny of their documents was

again effected. The petitioner could not be selected for

appointment.

14. Our attention has been drawn to the applicable

recruitment rules for the post of Firemen Grade-II. The relevant

portion thereof reads as follows:-

Name of post No. of Classification Scale of pay posts Fireman Grade II 7 Civilians in Rs.200-3-

                                 Defence Services,      206-4-234-
                                 Group‟D‟      (Non-    EB-4-250
                                 Gazetted,      Non-
                                 Industrial)

Test as to physical fitness etc. referred as in column 8 shall be as under:-

      1. Height without shoes ......           165 cms provided
                                             that a concession
                                             of 2.5 cms in
                                             height shall be
                                             allowed        for
                                             members of the
                                             Scheduled Tribes.

      2. Chest (un-expanded).......              81.5 cms.

      3. Chest (on expansion).......             85 cms.

      4. Weight                  .........       50 kgs. (minimum)

      5. Endurance Test:

(a) Carrying a man (fireman list of 63.5 kgs. To a

distance of 183 metres within 96 minutes).

(b) Clearing 2.7 metres wide ditch landing on both feet (long jumps).

(c) Climbing 3 metres vertical rope using hands and feet."

15. We may note that the original proceedings of the Board of

officers dated 19th July, 1995 have also been produced before

this court and have been scrutinized by us. Learned counsel

for the petitioner has also placed the photocopy of these

proceedings which are available with him. The record relating

to the selection process shows that a total number of 32

candidates had appeared before the Board of officers in the

test for recruitment as Firemen Grade-II which was on the 19th

of July, 1995. The Board has recorded detailed proceedings

based on physical fitness; practical test as well as interview on

this date. Separate marks have been awarded for the various

criterion which have been placed before this court. Based on

the said testing and marks secured by the candidates, the

Board of officers had drawn-up the following merit list of the

candidates. The same reads as follows:-

"MERIT LIST

Sl. Name of Candidate Class Total Remarks No and father's name Marks

1. Sh. Balwinder Singh Gen 51 ½ % S/o S h. Devi Singh

2. T. No.697 Maz Gen 50 ½ Sh. Bachan Singh

3. Sh. Pritam Chand S/o SC 50 Sh. Garib Dass (Ex.Ser)

4. Sh. Surinder Singh, SC 47 ½ S/o Sh. Amar Nath

5. T. No.660 Maz SC 45 ½ Sh. Bhupinder Pal

6. Sh. Vijay Singh, S/o Gen 44

Sh. Amar Nath

Sh. Prabhdayal

Presiding Officer Sd/-

(IC-39481N Major SR Choudhary)

Member 1. Sd/-

(IC-44356N Capt Ranjan Kumar)

2. Sd/-

IC-51247A Capt Manish Bakshi)"

16. We find that the proceedings of the Board of officers were

approved by Colonel Raj Kapoor, Commandant of 9 Field

Ordnance Depot on the same date.

17. The merit list has duly been signed by the presiding

officers along with three members of the Board of officers and

stands approved by the Commandant of 9 Field Ordnance

Depot. As noticed above, the Board of officers were required to

make a recommendation for appointment to one post in the

General Category and one in the Reserved Category.

Accordingly, the Board had made the following

recommendations for appointment:-

"RECOMMENDATIONS BY THE BOARD OF OFFICERS

The bd of offrs having carried out scrutiny of the docume like sponsorship of candidates by respective emp exchanges, pl of SC/ST/General Class, academic qualifications, date of birth and physical fitness test as prescribed vide SRO 145/76 follow by a written test and interview draw an overall merit list as per Appx. „A‟.

2. Keeping in mind the two vacancies available e.g. one for SC/S and one for unreserved cat and the overall posn in the merit. recommends the u/m candidates for the recruitment of firemen G

(a) Sh. Balwinder Singh S/o - General Class (unreserved) Sh. Devi Singh

(b) Sh. Pritam Chand S.o - SC Sh. Garib Dass

Presiding Officer Sd/-

(IC-39481N Major SR Choudhary)

Member 1. Sd/-

(IC-44356N Capt Ranjan Kumar)

2. Sd/-

IC-51247A Capt Manish Bakshi)

APPROVED

Sd/-

(Raj Kapoor) Colonel Commandant"

18. In view of the above factual narration, there can be no

manner of dispute that so far as the petitioner was concerned,

he had appeared in the recruitment process and was found fit

for consideration. On a consideration of the overall record

before the Board of officers and the marks secured by the

petitioner in detailed testing, we find that he was at serial no.3

in the merit list.

19. The above narration also shows that the allegations

against respondent Nos.4 and 6 are not substantial. We also

find that the grievance of the petitioner that his certification

had been doubted and had not been considered by the

respondents is misconceived and unsupported by the record.

20. In this background, so far as the recommendation of the

candidate who was at No.1 in the meritorious General Category

applicants for appointment to the post in question cannot be

faulted without any reason.

21. It becomes necessary for us to consider the contention of

the petitioner that in view of the land of his family having been

acquired for defence purposes, he had an absolute right for

consideration of such appointment. In this regard, reliance has

been placed on certain instructions issued by the National

Employment Service to employ officers which bears LSM

No.1/88/1.11 and relates to the subject of "priority in

submission to the persons/dependents whose land is acquired

for Central Government projects". The relevant extract of the

same reads as follows:-

"2. It has now been decided in consultation with the Bureau of Public Enterprises to restore the earlier instructions issued vide EEM No.14/84/1.11. Para 11.66 of N.E.S.M. Vol-I may, therefore, be replaced by the following:-

"11.66(a) When persons are evicted from their land on account of acquiring their land for the purpose of Defence projects/Industrial projects in the public sector (Government Exchange will register such evictees on the production of certificates from land & Revenue Authority of the area. The Employment Officer may also go for mobile registration of such applicants on receipt of the request from the employers for whom the land is acquired. However, the condition of producing the certificates of eviction of his land from Land Revenue Authority of the area will also be applicable in such cases.

(b) On receipt of vacancies from such employers, the Employment Exchange will give to that employer who acquired the land for the project. In case of Defence Projects, application whose land has been acquired for the project would get over-riding priority in priority III for appointments in projects as skilled or unskilled workers, clarks and against will non-technical posts on comparatively other low scales of pay. This benefit will be applicable only in the project for which the land is acquired and will be restricted the only upto the construction stage of

the project. The concessions should be made available to all persons who have been displaced as a result of coming up of the projects in a particular area irrespective of the fact whether they are land owners or their dependents."

22. We find that the respondents have not doubted the

certificates produced by the petitioner from the Special Land

Acquisition Collector, Amritsar which certified that the land of

Shri Amar Nath S/o Shri Bakha Ram at Village Punjupur, HBN

No.323, Tehsil Pathankot, District Gurdaspur has been totally

acquired for defence purposes by the Government vide Punjab

Government notification No.11/9/85-54(V)/19343 dated 31st

July, 1987.

23. The question which arises for consideration is as to

whether the instructions by the National Employment Exchange

confers the right of consideration for such appointment was

noticed by the respondents.

24. Perusal of the clause „B‟ as extracted hereinabove shows

that such prioritization was to be effectuated in the case of

appointments being effected for defence projects which are

being raised on the very land which stood acquired. The

benefit under the said instructions is also restricted only up to

the construction of such project.

No material has been placed before this court which

would enable us to arrive at a conclusion that the petitioner

has been deprived consideration or appointment for a post

relating to a project which was coming up on acquired land

which belongs to the petitioner‟s family. There is nothing on

record also to suggest that there was any such construction or

project on the acquired land.

25. Be that as it may, it needs no elaboration that the

prioritization under these instructions does not confer an

absolute right for appointment. The same would entitle a

person for consideration for the appointment. In this behalf,

the pronouncement of the Supreme Court reported at V-2001

(2) of All India Services Law Journal in the case of Balbir

Kaur and Anr. etc. vs. Steel Authority of India Ltd. &

Ors. may be usefully referred to. This case related to

appointment to compassionate appointment.

26. The aforenoticed factual narration shows that the

respondents were considering appointment to a single post in

the General Category. It certainly cannot be contended or held

that consideration for appointment to such single post had to

be confined to the petitioner for the reason that his family land

had been acquired.

27. Learned counsel for the petitioner has also placed

reliance on the pronouncements reported at 2001 (9) SCC

525 titled Dinesh Chandra Gahtori vs. Chief of Army Staff

& Anr. and 1989 (3) Supreme Court Rulings page 45 titled

Smt. Sushma Gosain & Ors. vs. Union of India & Ors. in

support of his contention that the objection of the respondents

relating to the territorial jurisdiction is misconceived.

28. In this background, certain facts also deserve to be

noticed. The writ petition relates to a selection process which

was completed in the year 1996. The present writ petition was

filed on or about 10th May, 1996. We find that rule was issued

in the matter on 2nd December, 1997. On a consideration of

the fact that the writ petition had remained pending in this

court for over 14 years, learned counsel for the respondents

has not pressed this objection of territorial jurisdiction.

29. The time frame noticed above is also relevant in view of

the fact that the petitioner is seeking appointment and initial

induction into service in a post which was advertised in 1995.

Long period of almost 15 years has passed while the writ

petition has remained pending. It would remain a moot point

as to whether initial induction or fresh appointment can

possibly be made 15 years after the entire selection process

has been over.

30. We may also note that no challenge is laid with regard to

the selection which was effected. There is no impleadment of

the aforenoticed person who was selected and appointed to the

only General Category post for which applications were invited.

31. It is necessary for us to notice certain events which

transpired. When hearing in the petition commenced, learned

counsel for the petitioner had got extremely excited and

started making submissions in a very high pitched voice which

rendered them incomprehensible. We were therefore

compelled to request him not to raise his voice to such a level

to enable us to appreciate his arguments which he had

complied with.

32. We may note that hearing in this matter had commenced

at about 11:15am. After we had heard the matter for almost

one and a half hours and counsel for the respondents had also

made submissions, learned counsel for the petitioner had

started insisting that the matter be transferred on the ground

that this court was not granting him hearing because of the

request by this court to him not to raise his voice inasmuch as

the same was impeding a fair hearing in the matter. Having

heard both parties in the matter at great length for over one

and a half hours, the request for transfer in this writ petition of

1996 after counsel for the parties had concluded submissions,

was considered unfair and inappropriate and, therefore,

rejected.

33. We may note that after rejection of the said request,

counsel for the petitioner has responded to queries and

assisted in the dictation of the present order.

In view of the above discussion on the challenge raised by

the petitioner, we find no merit in this writ petition which is

hereby dismissed.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 21, 2010 aj