Virender Singh Panwar vs Union Of India And Anr.
2010 Latest Caselaw 2964 Del

        *                IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Reserved on : 31.05.2010
        %                                           Date of decision : 04.06.2010


        +                             WP (C) No.3281/2003


        VIRENDER SINGH PANWAR... ...                        ...       ...       ...PETITIONER

            Through :                   Mr. Sunil K. Mittal, Mr.Sandeep Sharma
                                        and Mr.Kshitij Mittal, Advocates.


                                        -VERSUS-


        UNION OF INDIA AND ANR.                          ...      ...       RESPONDENTS

            Through :                   Mr.V.K.Tandon, Advocate


        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON‟BLE MS. JUSTICE VALMIKI J.MEHTA


        Whether the Reporters of local papers
        may be allowed to see the judgment?                             YES

        To be referred to Reporter or not?                              YES

        Whether the judgment should be                                  YES
        reported in the Digest?


        SANJAY KISHAN KAUL, J.

1. An advertisement was issued by the Staff Selection

Commission („SSC‟ for short) on 05.03.1994 for

recruitment to the post of Sub Inspector (Executive).

The scheme of examination required a candidate to

qualify in the written examination to be followed by a

personality test, physical test and physical

measurements including vision test. The examination

_____________________________________________________________________________________________

was held on 03.07.1994 and the petitioner participated

in the same. The petitioner was successful in the written

examination, result of which were declared on

19.07.1995. However, in the physical efficiency test, the

petitioner failed and thus was not recruited.

2. The petitioner challenged the action of his non

recruitment for failing the physical test by filing OA

No.1523/1995 and prayed for a second physical test.

The CAT acceded to the said request and thus a second

physical examination of the petitioner was carried out on

09.01.1997 in which he was declared successful. In the

meantime, however, a batch of candidates recruited in

pursuance to the examination of 1994 was sent for

training on 19.11.1996. The petitioner was also

interviewed on 17.1.1997 and the result of the petitioner

was declared on 10.03.1997 informing him that he could

not qualify due to his low merit. The petitioner

requested the SSC to supply him the detailed marks on

01.04.1997. Thereafter, the petitioner made a detailed

representation on 26.08.1997 predicated on the decision

of the Supreme Court in SLP No.16356-16358/2006 Vijay

Pal Singh and Ors. V. UOI and Ors. decided on

14.08.1997. It would be relevant to notice at this stage

that some of the candidates who had been recruited had

total marks less than that of the petitioner but despite

this the petitioner was not recruited on account of the

fact that he had failed to obtain the minimum marks in

_____________________________________________________________________________________________

Paper III for Hindi. Respondents claimed to have fixed

a minimum percentage of 40 per cent which required

the petitioner to obtain at least 80 marks out of 200

marks, but the petitioner had only obtained 68 marks.

3. There were other candidates who had appeared for 1994

examination and were similarly situated as the petitioner

inasmuch as they had failed to obtain the minimum

marks in Hindi. These persons had approached CAT by

filing OA Nos.2226/2005, 1880/1995 and 1975/1995, but

their challenge was negated vide order dated

26.07.1996, It is against this order that SLP Nos.16356-

16358/1996 and 24653/1996 were filed. To gauge the

purport of the Supreme Court judgment, it is necessary

to reproduce the order which is a short one:

"We have heard Sh.R.K.Jain, the learned senior counsel appearing for the petitioners in special leave petition (civil) Nos.16356-58/96 and Ms.Mana Chakraborty the learned counsel appearing for the petitioner in S.L.P.(c) No.24653 and Sh.V.C.Mahajan, the learned senior counsel for the respondents.

The matter relates to selection for appointment on the post of Sub Inspector (Executive) in Delhi Police. Sh.Jain states that even after appointing the selected candidates, a number of vacancies are still available on which appointments can be made. Shri Jain has pointed out that though the petitioners had obtained the cut off marks prescribed for the purpose of personality test (interview), they were not selected for the reason that they failed to obtain the minimum qualifying marks that were prescribed for Hindi in paper III after the personality test had been conducted. It is submitted that in the merit list, as per the aggregate of marks obtained in all the papers, the petitioners are better placed than the candidate who were selected by the Staff Selection Commission.

In the circumstances, It is directed that in _____________________________________________________________________________________________

case vacancies are available for appointment on the posts of Sub Inspectors (Executive) in Delhi Police for which the impugned selection was made, the respondents may consider for appointment against those vacancies the petitioners and other similarly situated candidates on the basis of merit as per the aggregate of the marks obtained by them in all the papers and if on the basis of such consideration it is found that the petitioners can be so appointed the respondents shall appoint them against the existing vacancies by relaxing the requirement of minimum qualifying marks prescribed for Hindi in paper III. The special leave petitions are disposed of accordingly."

(emphasis supplied)

4. A perusal of the aforesaid order would show that the

same is predicated on a submission that there were

existing vacancies available for appointment to the post

after the selection was made and in the said

circumstances it was directed that the respondents may

„consider‟ for appointment against „those vacancies‟ „the

petitioners and other similarly situated candidates‟ on

the basis of an aggregate of marks obtained by showing

relaxation for the requirement of minimum qualifying

marks prescribed for Hindi in paper III. Thus, the

requirement stipulated of minimum marks for Hindi in

paper III was not struck down, but on the other hand was

upheld. The only concession shown was that in the

selection process, if some seats are still left vacant, the

same can be filled in on the basis of aggregate merit by

relaxation of such minimum qualifying marks criteria.

The expression used by the Supreme Court also shows

that the petitioners in those petitions and other similarly

_____________________________________________________________________________________________

situated candidates were placed at par but they had to

be appointed against the vacancies in respect of the

process of recruitment for 1994. The case of the

petitioner is that he is similarly situated and thus is

entitled to be recruited against the 1994 selection

process.

5. The respondents in response to the representation,

however, took the stand that on 24.11.1997 that there

were no vacancies in respect of 1994 selection process.

The petitioners in Vijay Pal Singh and Ors. V. UOI and

Ors‟s case (supra) filed even a contempt petition being

Contempt Petition No.138-141/1998 which was however

dismissed on 07.08.1998 with the observation that no

case had been made out for taking action for contempt.

The petitioner, however, claims that an affidavit was

filed in those contempt proceedings to negate the plea

of absence of vacancies and thus the petitioner made

another representation on 01.05.1998. There is certain

other correspondence placed on record between Delhi

Police and SSC to establish the category-wise break up

of vacancy position to show that the petitioner could

have been so appointed. The petitioner, however, did

not succeed in persuading the respondents and thus

filed OA No.1100/1999 before Central Administrative

Tribunal („CAT‟ for short) seeking a direction for his

appointment with effect from 1994.

_____________________________________________________________________________________________

6. The OA was heard by CAT on 29.09.2000 and the

petitioner claims that the order was dictated in the Open

Court whereby the petitioner was successful. However,

a copy of the order was not supplied but on the other

hand the case was listed for presence of both the parties

on 23.10.2000 on the premise of certain facts being

noticed in the record. Ultimately, CAT dismissed the

petition vide impugned order dated 18.12.2000, which is

now sought to be assailed by filing the present writ

petition under Article 226 of the Constitution of India.

7. The impugned order is predicated on the notice for

recruitment published by SSC on which even learned

counsel for the petitioner placed reliance. It is not in

dispute that inasmuch as the notice specifically did not

stipulate the minimum marks to be obtained in the

written test, but while dealing with paper III, which is a

language test, the following notes were inserted:

"(1) The commission have the discretion to fix the minimum qualifying standard and any or all the parts/ Sub-parts of each of the paper of the written examination separately for General, SC/ST & Ex- Serviceman candidates.

(3)Only those candidates who attain minimum qualifying standard in part-I of the examination viz. Written Examination separately for each of the two or three categories of posts, as may be fixed by the commission in their discretion, will be eligible to be called for the personality test for respective posts."

_____________________________________________________________________________________________

8. The process followed in the examination in question has

been explained in para 3 and 4 of the impugned

judgment, which reads as under:

"3. As per examination notice the SSC had the discretion to fix the minimum qualifying standard in any of the parts sub parts of each paper the paper of the written examination and penalty for different categories of candidates. The notice also provided the paper 2nd and/ or paper 3rd would be evaluated only in respect of those candidates who obtained a minimum qualifying standard in paper 1st as may be fixed by SSC. The SSC accordingly after evaluating answer scripts of paper 1st fixed a certain qualifying standard for that paper for evaluation of paper 2nd/3rd. In all 13632 candidates qualified in paper 1st for evaluation of paper 2nd and 4448 candidates qualified in Paper 1 for evaluation of Paper 3rd. After getting the evaluation of Paper II/III done the SSC fixed certain cut off marks for different categories of candidates on the basis of aggregate marks in paper I and II for CBI and CPOs and in Paper II and II for Delhi Police candidates. No minimum qualifying standard was fixed at this stage for Paper II and III.

4. After completion of personality test/interview, the SSC taking an overall view of the performance of the various candidates in different tests, both severally and collectively, fixed a minimum qualifying /cut off standard in paper 2nd/3rd also (carrying 200 marks). No minimum standard was, however, fixed for the personality test/interview."

9. The CAT took notice of the order in Vijay Pal Singh and

Ors. V. UOI and Ors‟s case (supra) passed by the

Supreme Court on 14.08.1997 as also dismissal of the

contempt petition on 07.08.1998. The plea of the

petitioners that there were vacancies which arose

subsequently which could be taken into consideration for

_____________________________________________________________________________________________

being filled in was also noted. 23 candidates were

alleged to have been declared unfit on account of police

verification and medical examination, but the

respondents explained that actually 7 candidates had

left the Department in 1997 while one had expired and

the other particulars were not correct. The vacancies

which arose in 1997 were treated as vacancies for 1997

and not for 1994.

10. In terms of the impugned order it has been

concluded that the petitioner could not appear in the

select list because he failed to obtain the minimum

marks and he was only claiming relaxation as directed

by the Supreme Court in terms of the order dated

14.08.1997 being similarly situated. However, the order

itself clearly stated that such consideration was

contingent upon vacancies still being available after

appointment of the selected candidates and in the

contempt petition a stand was taken that no vacancies

for the year 1994 was available whereafter the contempt

petition was dismissed. The respondents could not be

compelled to appoint the petitioner to the post against

subsequent vacancies as mere placement in the select

list did not give the person a legally enforceable right to

compel the respondents to appoint him. The select list

had a duration of life and could not extend over six years

to the year 2000.

_____________________________________________________________________________________________

11. Learned counsel for the petitioner sought to

contend before us that there was no occasion for the

petitioner to be called for a physical test and interview if

he did not fulfil the criteria for minimum marks in Paper

III for Hindi and thus this plea was only an afterthought

to somehow not appoint the petitioner. The counsel on

being asked was initially hesitant to answer the court

query as to whether the petitioner was basing his case

on the judgment in Vijay Pal Singh and Ors. V. UOI and

Ors.‟s case (supra), but after much goading did

acknowledge that apart from the aforesaid plea he

actually based is plea on similarity with Vijay Pal Singh

and Ors. V. UOI and Ors.‟s case (supra) and the direction

contained therein to treat similarly situated persons at

par.

12. Learned counsel also made a grievance that the

respondents had been taking conflicting stands on

vacancy position as also the manner of disposal of the

OA where the first order was dictated in the court and

then unilaterally reviewed subsequently and a different

order passed after listing the matter for directions.

13. Learned counsel for the respondents on the other

hand submits that in the absence of vacancies and the

interim order passed in Vijay Pal Singh and Ors. V. UOI

and Ors.‟s case (supra) as also in the contempt petition,

the petitioner could not raise a grievance.

_____________________________________________________________________________________________

14. On examination of the matter, we find the case of

the petitioner meritless. It is no doubt true that the

petitioner was initially sought to be denied recruitment

on the basis of his having failed in the physical test. His

prayer for a second chance in the physical test was

accepted by the CAT and the petitioner was successful in

the physical test. This does not amount to a waiver of

fulfilling the other requirements which had to be so

fulfilled.

15. The manner and sequence of conduct of

examination and the persons being asked to come for

interviews has already been explained in the impugned

order as extracted aforesaid. It is not as if the petitioner

has been singled out on the ground of his failure to

qualify in the written examination for Hindi in paper III.

There were other similarly situated persons who

approached CAT unsuccessfully in Vijay Pal Singh and

Ors. V. UOI and Ors.‟s case (supra).

16. A further challenge laid before the Supreme Court

was dealt with in the order dated 14.08.1997 which itself

makes it clear that the criteria of minimum marks was

not set aside but in view of the existing vacancies

observations were made that the respondents may

„consider‟ filling up all those posts by relaxing the

criteria for minimum marks on the basis of aggregate

marks obtained by the petitioners therein and other

similarly situated candidates like the petitioner. The

_____________________________________________________________________________________________

petitioner, in fact, sought to take advantage of this

direction and rightly so. However, the stand of the

respondents of absence of vacancies for 1994 was

accepted by the Supreme Court when the contempt

petition was dismissed and nothing survived thereafter.

The petitioner again claimed recruitment for vacancies if

any arising subsequently even in respect of candidates

who were originally recruited in 1994 when those

vacancies had been inlcuded for purposes of recruitment

for subsequent years. The select list cannot have an

indefinite period of validity.

17. The challenge laid by the petitioner was thus on

the basis of having been called for interview and thus

minimum marks not applying on the basis of Vijay Pal

Singh and Ors. V. UOI and Ors.‟s case (supra) have no

basis.

18. Insofar as the last plea about the OA being first

allowed and then dismissed is concerned, all that is

apparent from the record is that originally some order

was sought to be passed but the matter was listed for

directions whereafter the finally signed order had been

made available and thus the same cannot be faulted.

19. In the end, there was one further plea raised by

the petitioner though not contended in the pleadings,

arising from a judgment by a Division Bench of this Court

in W.P.(C) No.7591/1999 Narendra Kumar & Ors. v. UOI

& Anr. decided on 22.09.2008. The petitioners therein

_____________________________________________________________________________________________

were identically situated as the petitioner herein and

after the written test had taken the physical test, but

were disqualified on the basis of lack of minimum marks

in Hindi language test. In the said judgment, it has been

pointed out that in the process of selection, out of 30

posts reserved for departmental candidates only 24

posts were filled up. Thereafter, Vijay Pal Singh and

Ors. V. UOI and Ors.‟s case (supra) has been discussed.

The distinguishing fact mentioned in Narendra Kumar &

Ors. v. UOI & Anr.‟s case (supra) is that not only was the

original OA filed by the petitioner admitted but interim

directions had been passed that the posts to be filled in

were subject to final orders that may be passed in the

OAs pending before the Tribunal.

20. In terms of the judgment Vijay Pal Singh and Ors.

V. UOI and Ors.‟s case (supra), the petitioners were

entitled to appointment as to availability of posts and

those petitioners were declined appointment on the

ground that posts were not available since all of them

were filled up. It was, however, found that out of 30

posts reserved for departmental candidates, to be filled

in by direct recruitment, only 24 posts were actually

filled up and thus 6 posts in that category were available

and there were 6 petitioners before the Court in that

matter. The vital difference noted in that judgment is

that unlike Vijay Pal Singh and Ors. V. UOI and Ors.‟s

case (supra), there was an interim direction in that case.

_____________________________________________________________________________________________

21. In our considered view, this judgment is of little

assistance to the petitioner who is identically situated

with petitioners in Vijay Pal Singh and Ors. V. UOI and

Ors.‟s case (supra)and not like the petitioners in

Narendra Kumar & Ors. v. UOI & Anr.‟s case (supra). It is

undisputed that there were no interim orders passed in

the case of the petitioner before us while the Division

Bench has noted this very fact as the distinguishing fact

for issuance of directions for appointment as compared

to Vijay Pal Singh and Ors. V. UOI and Ors.‟s case

(supra). Since appointments were made subject to final

outcome in Narendra Kumar & Ors. v. UOI & Anr.‟s case

(supra), the relief was granted to 6 petitioners as there

were 6 vacancies existing.

22. We are thus clearly of the view that not only does

the judgment in Narendra Kumar & Ors. v. UOI & Anr.‟s

case (supra) not support the case of the petitioner but

goes against the case of the petitioner as it seeks to

carve out a distinguishing feature from Vijay Pal Singh

and Ors. V. UOI and Ors.‟s case (supra) which is not

present in the case of the petitioner herein who is

actually similarly situated as the petitioners in Vijay Pal

Singh and Ors. V. UOI and Ors.‟s case (supra).

23. We are thus of the considered view that the

petitioner is not entitled to be appointed against any

vacancy of 1994 selection process as no such vacancy

_____________________________________________________________________________________________

exists and thus dismiss the writ petition leaving the

parties to bear their own costs.

SANJAY KISHAN KAUL, J.

        JUNE 04, 2010                                   VALMIKI J.MEHTA, J.
        dm

_____________________________________________________________________________________________