Dr. Prem Lata vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 3961 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   Letters Patent Appeal No. 518/2011

                                          Reserved on: 21st July, 2011
%                                       Date of Decision: 16th August, 2011

Dr. Prem Lata                                             ....Appellant
                      Through          In Person

                     VERSUS

Govt. of NCT of Delhi & Ors.                          ....Respondents
                 Through             Mr. N. Waziri, Standing Counsel with
                                     Ms. Neha Kapoor, Advocate for
                                     Respondent No. 1.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?                   Yes
3. Whether the judgment should be reported in the Digest ? Yes

SANJIV KHANNA, J.

We have heard Dr. Prem Lata, appellant in person who has

assailed the decision dated 3rd May, 2011, dismissing her Writ Petition

(Civil) No. 178/2011. The appellant claims that appointment of Mr.

Rakesh Kapoor, Mr. C.K. Chaturvedi and Mr. S.N.A. Zaidi, respondents

4, 5 & 6 herein as a Presidents of respective District Forum, should be

set aside and quashed and mandamus should be issued for appointment

of the appellant as a President of one of the District Forums in Delhi

w.e.f. 1st December, 2010 with all consequential benefits.

2. The appellant is a member of District Forum and pursuant to

advertisements published in newspapers on 18th March, 2010, inviting

applications for the post of 5 Presidents, had applied for appointment as

a President of one of District Forums in Delhi. 72 applications including

that of the appellant were received and after scrutiny 63 candidates were

called for interview.

3. As per Section 10(1)(A) of the Consumer Protection Act, 1986

(Consumer Act, for short), the Selection Committee consisting of

Chairman/President, State Commission, Member Secretary, Law

Department and Member Secretary (Consumer Affairs), considered the

applications, had interviews and made the following recommendation:-

"After having interviewed and going through credential of all the candidates, in order to find out their suitability, the Selection Committee's recommendation and panel of candidates in that order for the purpose of filling up of the vacancy is as under:-

          S.No       Selected            Under panel        Under
          .                                                 panel
          1.   Sh. Rakesh Kapoor        Sh. D.C.Anand Sh. Chaturbhuj

                 (At Sr. No. 11)     (At Sr. No. 19) (At Sr. No. 33)
          2.     Sh. C.K. Chaturvedi Sh. Gurdeep Sh.              Syed
                                                     Ghulam Muraza

                    (At Sr. No. 16)        Kumar            Rizvi

                                          (At Sr. No. 17) (At Sr. No. 04)


          3.       Sh. Babu Lal           Sh. Lal Singh    Sh. Ashoka Jain

                   (At Sr. No. 31)        (At Sr. No. 05) (At Sr. No. 07)


          4.       Sh. M.C.Mehra          Dr. Prem Lata Sh.            Dr.
                                                          V.B.Pandey
                   (At Sr. No. 42)        (At Sr. No. 15)
                                                          (At Sr. No.29)


          5.       Sh. S.N.A.Zaidi        Sh.    Sardar Sh. Babu Ram
                                          Akhtar        Verma
                   (At Sr. No. 18)
                                          (At Sr. No. 26) (At Sr. No. 14)

The panel will remain valid for one year. In case the candidates selected fail to join within 45 days of offer of appointment, the appointment will lapse and the second or third person as the case may be in preference will be offered the appointment.

During the course of interview on our query the candidates already serving had candidly expressed before us that in case they are selected and offered appointment, they will join immediately."

4. As per the aforesaid recommendations, the appellant was the first

alternative in case Mr. M.C. Mehra, who was selected, did not join as a

President. It is accepted that Mr. M.C. Mehra did join as a President

within 45 days of the issue of the appointment letter. His appointment,

therefore, had the effect and the consequence that the appellant could not

be appointed as a President. This factor was noticed by the learned single

Judge and is one of the grounds for rejecting the writ petition. Learned

single Judge, after examining the records, has observed that the case

made out by the appellant that pursuant to the initial recommendation, a

consolidated panel of selected candidates and candidates under panel

was prepared and that she was placed at serial no. 6, is not correct. It is

obvious that in case a consolidated panel was not prepared the appellant

cannot claim any right to appointment except in case Mr. M.C. Mehra

had not joined as a President.

5. The case made out by the appellant before us is that doctrine of

estoppel should be applied and as respondents No. 4 to 6 did not join

within 45 days after issue of the letters dated 13th October, 2010, they

have not been validly appointed and their subsequent joining is illegal

and invalid. Accordingly, the appellant should be appointed as a

President of a District forum.

6. We do not find any merit in the said contention for the reasons

stated below.

7. After the recommendations were made by the Selection

Committee, the names were sent for approval of the Lt. Governor. After

approval was granted by the Lt. Governor, offer letters dated 13 th

October, 2010, were written to the 5 selected candidates including

respondents 4 to 6 herein. Appellant was not issued any offer letter as

she was under panel and was not in the list of 5 selected candidates. The

offer letter dated 13th October, 2010, sent to the said respondents reads

as under:-

"I am directed to convey the approval of Lt. Governor, Delhi for appointment to the post of President, in one of the District Forum of Delhi. The offer of appointment is on the following terms and conditions:-

1. The appointment is on whole time basis.

2. The appointment shall be for a term of five years or till you attain the age of 65 years whichever is earlier.

3. The salary, allowances and other perquisites of appointment are governed by the provision of the Delhi Consumer Protection Rules 1987 as amended from time to time.

4. The other terms and conditions of your service shall be regularized through the other issued by Protection Act, 1986 and read with Delhi Consumer Protection Rules, as amended from time to time.

5. Under Rule 3(4) of the Delhi Consumer Protection Rules, 1987 you are require to give an undertaking before assuming the charge to the effect that you do not and will not have any such financial or other

interest as are likely to affect prejudicially your function as a President of the District Forum.

The acceptance of offer may please be intimated within 10 days from the date of issue of this letter. The formal appointment letter subject to your acceptance will be issued in due course of time."

8. It is accepted case that respondents 4 to 6 accepted their

appointments and thereafter appointment letter dated 25th October, 2010

was issued to them.

9. Subsequently, Government of NCT of Delhi, issued letter dated

9th November, 2010, to respondents 4 & 5. For the sake of convenience,

the said letter is reproduced below:-

"I am directed to inform you that an offer for appointment to the post of President, District forum, Delhi was issued to you vide this office letter No. F.50(39)/F&S/CA/2006/1752 dated 13.10.2010. Consequent upon your acceptance vide your letter dated 20.10.2010, appointment letter was issued to you vide office order No. F.50(39)/2006/ F&S/CA/1825 dated 25.10.2010. Whereas you have not submitted your joining report till date.

Whereas the Competent Authority has agreed to the officer of appointment subject to the condition that the selected candidates should join within 45 days. Therefore, you are hereby informed that if you are unable to join by 27.11.2010 the offer of appointment to the above said post will automatically lapse & the next candidate on the panel will be considered for appointment for the post."

10. The said respondents replied pointing out that the respondent No.

4 was the then Principal District & Sessions Judge, Delhi and the

respondent No. 5 was District Judge-II, Delhi and respondent No. 6 was

Additional District Judge, Mathura and they had written to the respective

High Courts to be relieved. It was also stated that High Court of Delhi

had written a letter to the Lt. Governor, Delhi for extension of time.

11. The Government of NCT of Delhi then extended the time.

Subsequently, respondent No. 4 joined as President of the respective

Forum on 28th February, 2011 and respondents No. 5 and 6 joined the

respective forum on 25th February, 2011. Whether or not to extend time

is within the domain and a power/right to be exercised by the respondent

authorities. If the respondent authorities have a right to fix a period/time

of joining then they also have the right to extend the period or time of

joining. The two powers go hand in hand. It is not the case of the

appellant that there is a statutory provision or rule which fixes the period

or time of joining.

12. Time or period of joining is extended by the authorities and is not

an unusual feature. We had occasion to deal with the said aspect in Writ

Petition (Civil) No. 3818/1998, K.P. Dubey and Ors. vs. Union of India

and Ors., decided on 8th April, 2011. In the said case, dispute arose

about the seniority as one of the incumbents had joined after the

stipulated date but within the extended period. In the said case,

reference was made to Office Memorandum dated 6th June, 1978, and it

was held that if the candidate joins within the extended period, he would

not lose his seniority.

13. A similar issue had also arisen before the Supreme Court in P.

Srinivas vs. M. Radhakrishna Murthy and Ors., (2004) 2 SCC 456.

The dispute was again about seniority as one of the candidates had not

joined within the stipulated time and the contention raised was that his

name should be removed from the said list. The contention was rejected

holding that there was no statutory rule or provision stipulating time of

joining. The Government order empowered the Service Commission to

extend the time for joining, if it considers necessary. It was accordingly

observed as under:-

"10. We find that GOMs No. 822 dated 18-9-1967 issued by the Government of Andhra Pradesh was dealing with the question of fixing the time-limit for the candidates selected by the Commission to join when they were to be appointed by direct recruitment. Taking the factual position as prevailing then, it was indicated that the time-limit was to be normally sixty days. It was further stipulated therein that in case they did not join within the stipulated time, their names

could be removed from list of selected candidates. The Service Commission was enabled to extend and give further time for joining before deleting the name of the candidate concerned from the select list for not joining in time. The power of extending time given to the Commission under the GO was not in relation to any statutory prescription, and cannot also be said to be in derogation of the powers of the State Government as the ultimate repository of all executive power. On the other hand, the Government itself provided that the time could be extended if the Commission considered it necessary. This was merely an enabling power conferred by the Government only and the GO cannot be construed to be self-destructive of the power of the Government, in the absence of any statutory rules as such, in this regard. The Commission appears to have been enabled to grant time to effectively monitor the operation of the main list as well as the waiting list (in order of merit) without any undue lapse of time, in case the selected candidates did not join within the indicated time period. It was an executive decision of the Government. When the Government itself extended the time, in case of the petitioner, on the basis of the reasonableness of the request, it cannot be said that in the absence of any order passed by the Commission extending the time, the extension granted by the Government was without authority in law."

14. Whether or not to extend the time of joining was a right of the

Government of NCT of Delhi. Merely because the Govt. of NCT of

Delhi had earlier written a letter stating that the respondents should join

within 45 days or the Selection Committee had recorded the fact that the

candidates candidly accepted that if they were issued appointment letters

they would join immediately, does not mean that for valid and good

cause or reason their joining time could not be extended. The three of the

selected candidates were already serving as judicial officers in the

Higher Judicial Service in Delhi and Uttar Pradesh. Respondents No. 4

and 5 were to superannuate on attaining age of 60 years on 31st March,

2011, whereas respondent No. 6 to superannuate on attaining the age of

60 years on 30th June, 2011. Therefore, they had to follow rules and

procedure prescribed before they were to be relieved and appointed as

the Presidents. This required completion of formalities and compliance

with the Rules.

15. We fail to understand how and in what circumstances the

appellant feels that the principle of estoppel applies and the extension

could not have been granted. Principle of estoppel necessarily requires

change of position pursuant to a promise/statement made which

adversely affects the party which has come to the court. The Supreme

Court in Gyarsi Bai v. Dhansukh Lal, (1965) 2 SCR 154, it is stated as

under:

"8. ..The doctrine of estoppel embodied in Section 115 of the Evidence Act has been explained by

the Judicial Committee in C.D. Sugar Co. v. C.N. Steamship in the following terms:

"estoppel is a complex legal notion, involving a combination of several essential elements, the statement to be acted upon, action on the faith of it, resulting detriment to the actor".

To invoke the doctrine of estoppel three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made...."

16. In B.L. Sreedhar v. K.M. Munireddy, (2003) 2 SCC 355 it has

been held as under :

"15. On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim allegans contraria non est audiendus (a party is not to be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done, it is in truth a kind of argumentum ad hominem."

It is not unusual and abnormal for the appointing authorities to

extend the time for joining.

17. It is not even pleaded before us that the time for joining was

extended without any reasonable cause or ground.

18. In view of the aforesaid the appeal is dismissed. No costs.

(SANJIV KHANNA) JUDGE

( DIPAK MISRA ) CHIEF JUSTICE

August 16th, 2011 kkb