Sh.Shambhu Dutt vs Union Of India & Ors
2010 Latest Caselaw 1456 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C) No.1795/2010

%                            Date of Decision: 16.03.2010

Sh.Shambhu Dutt                                                .... Petitioner
                          Through Mr. A.K. Sharma, Advocate.

                                     Versus

Union of India & Ors                               .... Respondents
                   Through Mr. A.K. Bhardwaj, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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


ANIL KUMAR, J.

* The petitioner has challenged the order dated 20th March, 2009

passed by Central Administrative Tribunal, Principal Bench, New Delhi

in O.A No.1983/2008 titled Sh.Shambhu Dutt v. Union of India & ors

dismissing the original application of the petitioner seeking direction to

the respondent declaring the petitioner successful and having qualified

the ministerial staff (UDC) for the year 2006 and to consider him for

promotion to UDC/STA.

The brief facts to comprehend the controversies are that the

petitioner joined as a Group D employee in the year 1991 and later on

he was promoted on adhoc basis as an LDC (Lower Division Clerk). He

was regularized as LDC with effect from 16th February, 2001.

While working as LDC, which post was also re-designated as Tax

Assistant, he appeared in the departmental examination for the post of

UDC (Upper Division Clerk). He cleared one paper in 1997 and paper II

& IV in 2000. He also passed the computer knowledge test on 16th

June, 2003. Another paper was cleared by him in the examination held

in 2006 and the results declared in 2007. However, in the examination

for the year 2006 for the post of UDC, he was shown absent against

three papers, which he alleged that he had qualified in earlier

examination. In the examination held in 2006, the petitioner was

therefore, not declared successful. Consequently he gave a

representation which was not accepted and rejected by letter dated 24th

September, 2007.

Aggrieved by the rejection of the request of the petitioner to

declare him successful in the examination for the post of UDC he filed

an original application. He relied on a judgment of the Tribunal in the

case of Laxman Singh Bisht v. U.O.I and Ors being O.A No.2031/2006

where similar relief as claimed by the petitioner was allegedly granted.

The petition was contested by the respondents contending inter-

alia that he had appeared only in one paper III and was absent in other

three papers of UDC examination, 2006. According to the respondents

as per amended rules, the candidates promoted on adhoc basis were

required to appear in all papers fresh. Reliance was also placed on

various letters and circulars issued specifying that ad-hoc promotes

were not eligible to appear in the departmental examination which was

meant for regular grade. It was also clarified that the adhoc candidates

who had appeared in the Ministerial Examination in earlier years, their

marks of earlier years were not to be considered for promotion to the

post of UDC and candidates having regular appointments as LDCs were

eligible to appear in the examination. Regarding the reliance of the

petitioner on Laxman Singh Bisht (Supra) in which case the candidate

had not been intimated about appearing in all the papers fresh, it was

contended that the petitioner in the present case was advised

individually and personally by letter dated 6th October, 2006 which was

served on him. Reliance was also placed on various circulars which

were duly displayed on the notice board of the office and in these

circumstances, it was contended before the Tribunal that the petitioner

was fully aware of the decision that he had to appear in all the papers

in 2006 examination. In the notification for the examination also it was

categorically stipulated that the candidates would be required to appear

in all the papers in the examination.

The Tribunal after hearing both the parties specifically relied on

the notification which clearly stipulated that all the candidates have to

appear afresh as a rule, as the marks obtained in earlier examination

when the petitioner was working as ad-hoc and not as regular LDC

shall not be taken into consideration. The relevant extract of the

notification dated 3rd October, 2006 is as under:-

"3. In case of ad hoc employees now regularized, who have appeared in the examination held in earlier years, the Board‟s instruction vide F.No.A-34014/3/98-Ad.IX dated 17.5.2002, has been followed. Hence, all are informed that any marks obtained in earlier years, by ad hoc employees, while appearing provisionally shall not be taken into consideration and candidates having regular appointments only will appear in the Exam.

All candidates are, therefore, advised to appear afresh as per rule since marks obtained in ad hoc period shall not be taken into consideration."

In these circumstances, the Tribunal held that the petitioner and

the other candidates were categorically and specifically intimated that

they have to appear in all the examinations and even an individual

letter dated 6th October, 2006 was served on the petitioner. The

Tribunal has also considered the entrance card and certain cancellation

done on the said entrance card and has disbelieved that cutting for

appearance in not all the papers could be done be by the authorities, as

it did not bear any initials and, therefore, had reached an inference that

the cutting was done by the applicant himself. Since the notification

clearly stipulated that the candidates have to appear afresh, the

entrance card and the cutting on the same was not be construed in

favor of pleas and contentions of the petitioner.

In these circumstances, the Tribunal had held that despite the

information to petitioner individually and personally by communication

dated 6th October, 2006 and by categorical notification and various

circulars which were put up on the notice board, if the petitioner opted

to appear only in one paper knowing fully well that he was required to

appear in all the papers, the petitioner cannot blame anyone else but

himself and has to face the consequences of not appearing in all the

examinations. The Tribunal has also distinguished the judgment relied

on by the petitioner.

The learned counsel for the petitioner before us has again

emphasized that the marks obtained by the petitioner in earlier

examination in 1997 and 2003 should have been taken into

consideration. The learned counsel, however, cannot deny that in 2006

when the petitioner appeared, the rules had been amended and this

was categorically brought to the notice of the petitioner. The notification

and circulars were also categorical about the candidates to appear in all

the examinations and only the regular LDCs were entitled to appear and

the petitioner was intimated personally. This is also not disputed by the

learned counsel for the petitioner that there have not been any

instances where ad-hoc LDCs on the basis of their performance in the

earlier examination have been promoted to UDC.

In these circumstances if, despite having knowledge by the

petitioner that he has to appear in all the papers in the examination, he

opted not to appear in all the examination. This will make him liable for

the consequences and consequently it cannot be held that petitioner is

entitled to be declared successful in the Ministerial Staff UDC

Examination, 2006. In the facts and circumstances, there are no

grounds to interfere with the order of the Tribunal impugned before us.

The pleas raised by the petitioner will not entitle him for interference by

this Court with the order dated 20th March, 2009 of the Tribunal. There

is no such illegality or irregularity in the order of the Tribunal impugned

before us which will entitle petitioner for any of the relief claimed by

him in his writ petition under Article 226 of the Constitution of India.

The writ petition is without any merit, and it is, therefore,

dismissed.

ANIL KUMAR, J.

MARCH 16, 2010                                  MOOL CHAND GARG, J.
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