Sh. K.S. Dabas vs The Indian Trade Promotion ...
2011 Latest Caselaw 1083 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 23rd February, 2011.

+                            W.P.(C) 1762/1994

         SH. K.S. DABAS                                      ..... Petitioner
                            Through:      Mr. Kamal Mehta, Advocate

                                     Versus

         THE INDIAN TRADE PROMOTION
         ORGANIZATION & ORS.                   ..... Respondents
                      Through: Ms. Sumati Anand, Adv. for R-1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                           No

2.       To be referred to the reporter or not?                    No

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


RAJIV SAHAI ENDLAW, J.

1. The writ petition was filed in the year 1994 when the petitioner was not considered for appointment to the post of Financial Advisor and Chief Accounts Officer of the respondent No.1 and when the respondent No.2 was appointed to the said post. The writ petition was filed claiming the

relief of striking down / quashing and setting aside of the appointment of the respondent No.2 and for declaration that the petitioner was eligible to be considered for appointment to the said post. Though the writ petition was accompanied with an application for interim relief but no interim relief was granted and the application for interim relief was ordered to be taken up along with the writ petition only.

2. The method of recruitment for the post of Financial Advisor and Chief Accounts Officer as per the Recruitment Rules is by promotion from departmental candidates, failing which by deputation from organizations of Government / Public sector and failing which by direct recruitment.

3. The counsel for the petitioner has argued that thus the first attempt ought to have been by filling up the post by promotion; only if the same was not possible, by filling up the post by deputation as aforesaid and only if no candidate fulfilled the qualification for the same also the appointment could be made by direct recruitment.

4. The respondent No.2 was appointed by direct recruitment.

5. The challenge by the petitioner, who was already a departmental candidate, having been employed with the respondent No.1 since the year 1977 and who had sought appointment to the said post either by promotion and upon being not considered eligible for appointment by promotion, by direct recruitment, is twofold. He contends that he has been wrongly

denied promotion. Alternatively, it is contended that he has been wrongly not considered for appointment by direct recruitment.

6. As far as the claim of the petitioner for appointment by promotion is concerned, under the Recruitment Rules, the eligibility for the departmental candidates to be so promoted was, either five years service in the respondent No.1 as Manager (Finance and Accounts) or nine years service in the respondent No.1 as Joint Manager (Finance & Accounts). It is the admitted position that the petitioner was promoted as a Joint Manager (Finance &Accounts) only in December, 1991. Thus at the time when the applications for the said post were invited in or about the year 1993, the petitioner did not fulfill the criteria of nine years service as Joint Manager (Finance & Accounts).

7. The contention of the petitioner however is that he was entitled to be promoted as Joint Manager (Finance and Accounts) as far back as in the year 1985 and was wrongly denied the said promotion / seniority and if had been granted the said seniority / promotion in 1985, he in 1993 would have fulfilled the criteria of nine years service as Joint Manager (Finance & Accounts). On enquiry, the counsel for the petitioner points out to prayer paragraph (ii) of the writ petition where the relief for granting due seniority to the petitioner is also claimed. It has at the outset been enquired from the counsel for the petitioner as to whether the claim of the petitioner in this petition filed in the year 1994 for seniority from as far back as in

1985 was not barred by laches, waiver and acquiescence. Objection in this regard has also been taken by the respondent No.1 in the counter affidavit. However, it is found that the claim of the petitioner for the said seniority is based on the judgment dated 27th February, 1991 of the Division Bench of this Court in B.R. Sagar Vs. Trade Fair Authority of India (being the predecessor in interest of the respondent No.1). Since the claim for seniority is based solely on the judgment of February, 1991, the same is not found to be so belated as to be denied for the reason of laches, acquiescence and waiver. As such the counsel for the petitioner has been heard on the merits of the said claim.

8. A perusal of the judgment in B.R. Sagar (supra), though relating to the general cadre (the petitioner herein belongs to the accounts cadre), shows that the minimum qualification for promotion to the post of Deputy Manager from the post of Assistant Manager is described as four years service as Assistant Manager. The case of the petitioner herein is that he joined the respondent No.1 as Accounts Officer on 1 st August, 1977; that in September, 1979 he applied for and was directly recruited as Assistant Manager and in December, 1983 was promoted as Deputy Manager.

9. It has as such been enquired from the counsel for the petitioner as to what was the minimum qualification for promotion from the post of Deputy Manager to the post of Joint Manager to which the petitioner was ultimately promoted in December, 1991 and with respect to which the

petitioner claims to be entitled to be promoted in the year 1985.

10. It appears that when the minimum qualification for promotion to the post of Deputy Manager was four years service as Assistant Manager, there must be some such qualification for promotion as Joint Manager also.

11. The counsel for the petitioner has fairly admitted that there is nothing on the record in this regard. Under instructions from the petitioner present in Court he states that the minimum qualification for promotion as Joint Manager was also four years service as Deputy Manager. It has then been enquired as to how the petitioner can claim to be entitled to be promoted as Joint Manager in the year 1985 when he had by then admittedly not completed four years as Deputy Manager.

12. It is pointed out that the petitioner in the present petition is claiming that he was entitled to be promoted as Deputy Manager in the year 1982 in accordance with the judgment in B.R. Sagar case. It has then been enquired from the counsel as to how the petitioner could make such claim without the minimum qualification of four years service as Assistant Manager, as recorded in the judgment in B.R. Sagar. The counsel replies that the respondent No.1 has not been following the Rule of minimum qualification and has been relaxing the same for consideration for promotion. Attention in this regard is invited to para 2(vii) of the petition where it is pleaded that the respondent No.1 had promoted two department

candidates who did not have the minimum qualification.

13. A reference to the corresponding paragraph of the counter affidavit shows that the respondent No.1 therein has denied the said allegations as vague and incapable of eliciting any reply. Thus no reliance whatsoever can be placed on the averment in the petition of others without minimum qualification having been promoted. There is nothing else on record to show that the rule of minimum qualification was being relaxed.

14. Faced with the aforesaid, the counsel for the petitioner has fairly stated that he is not pressing his claim on the basis of promotion but on the basis of wrong denial for consideration as a direct recruit.

15. The qualification for direct recruitment was associate membership of the Institute of Cost and Works Accountants of India / Institute of Chartered Accountants and 15 years managerial experience in Finance / Accounts in Government / Public Sector / reputed Private Sector organizations, preferably in the field of exhibitions. It was further provided that out of 15 years at least five years experience should have been as Head of the Division.

16. As far as the claim of the petitioner for consideration for appointment as direct recruit is concerned, the respondent No.1 in its counter affidavit in para No.2(xiii) has extracted the portion of the application of the petitioner for direct recruitment, where the petitioner

himself had admitted that though he did not fulfill the requirement of 5 years as Head of the Division, but had sought direct recruitment in case a suitable candidate fulfilling all the conditions advertised was not available.

17. The argument also of the counsel for the petitioner is not that the petitioner fulfills the minimum requirements for direct recruitment but is that so did the respondent No.2 not fulfill the said requirement and if the respondent No.1 has relaxed the same for the respondent No.2, there was no reason for the respondent No.1 to have not relaxed the same for the petitioner also and ought to have considered the petitioner for direct recruitment.

18. The challenge to the respondent No.2 not fulfilling the qualification for direct recruitment is twofold. Firstly, it is contended that he did not have five years experience as Head of the Division and secondly that he did not have even 15 years managerial experience as required.

19. With respect to the second challenge, it is stated that the respondent no.2 as per his own documents, on the date of the application had managerial experience only of 14 years and 11 months instead of 15 years and out of that also one year was as a trainee. With respect to the first challenge, attention is invited to the affidavit dated 14th March, 1995 filed by the respondent no.2 in these proceedings where he has stated that he headed the Internal Audit Division of his earlier employer namely ET&T

Corporation Ltd. and reported directly to CMD. It is informed that this Court had issued notice to ET&T and in response whereto ET&T had issued a letter dated 24th May, 1995 at page 125 of the paper book in which it had informed that Internal Audit is a separate entity and independent of Finance & Accounts Division and that the petitioner as the Chief Manager of the Internal Audit was reporting to the Director, Finance & Administration. It is argued that when the Recruitment Rules required 5 years experience as Head of the Division, it required 5 years experience as Head of the entire Finance & Accounts Department and not merely of the Internal Audit Division which is but one Division of the Finance & Accounts Department. It is urged that owing to the use of the words "out of 15 years at least 5 years experience.....", the 5 years have to be read as Head of Finance/Accounts and cannot be as Head of Internal Audit. The counsel for the petitioner has also drawn attention to the Circular of the Bureau of Public Enterprises to demonstrate that Internal Audit is a Division of Finance & Accounts Department. It has been enquired from the counsel for the petitioner as to whether the petitioner has pleaded that he had also headed for 5 years any Division. Though it is admitted that there are no pleadings to the said effect in the writ petition but attention is invited to the rejoinder filed by the petitioner to the additional affidavit of the respondent no.1 in which the petitioner has pleaded that Internal Audit is just one of the numerous functions and responsibilities of Head of Finance & Accounts and the respondent no.2 could not be considered as

having requisite experience of 5 years as Head of Finance & Accounts. In the said affidavit it is also pleaded that the petitioner has headed all the Divisions in the Finance & Accounts Department of the respondent no.1 including Internal Audit and should on the said parity have been considered as having experience of Head of Finance & Accounts Department.

20. I have further enquired whether there is any document on record to show that the petitioner was Head of any of the Divisions of the Finance & Accounts Department. I am informed that there is none.

21. I am unable to accept the contention that the 5 years experience as Head was required to be as Head of Finance/Accounts. While the Recruitment Rules required 15 years managerial experience in Finance/Accounts, the requirement as Head was only of a Division. A literal reading of the said Recruitment Rules means that the Division had to be a Division of the Finance & Accounts Department. While in relation to the Finance & Accounts, the word "Division" is not used, while providing for experience as Head, the word "Division" has been used and which can only mean one of the Divisions of the Finance & Accounts Department. If the intent had been that the entire 15 years experience should be as Head of the Finance & Accounts, there was no need to carve out difference between 15 years and 5 years as aforesaid.

22. The respondent no.1 else in its counter affidavit has pleaded that the Selection Committee was satisfied qua the 5 years experience of the respondent no.2 as Head of the Division.

23. The counsel for the petitioner has next invited attention to the document at page 174 of the paper book being photocopy of another Office Memo dated 2nd September, 1986 of ET&T Corporation Ltd. to contend that the respondent no.2 did not spent 5 years as Head in the Internal Audit also, as claimed by him. However no opportunity was granted to either of the respondents to respond to the affidavit of the petitioner to which the said document was annexed and hence no reliance at this stage can be placed thereon. Of course, the counsel for the petitioner has stated that the matter be adjourned to enable the petitioner to produce further documents and to call for the response of the respondents to the said documents but now when the arguments have been heard and when the pleadings stood completed way back in the year 1995-96 and the matter has been pending since then, it is not deemed expedient to adjourn the hearing. The parties were fully aware of their respective cases and in the last 15 years ought to have made up the deficiencies, if any and after the hearing, they cannot seek adjournment of the matter.

24. The Selection Committee of the respondent no.1 having found/considered the respondent no.2 to be satisfying the criteria and nothing having been brought before the Court to show that the decision of

the said Selection Committee is perverse or based on no material at all, this Court cannot sit in appeal over the decision of the Selection Committee.

25. It was at the outset of the hearing enquired from the counsel for the petitioner as to what is the status today of the petitioner and the respondent no.2. It is informed that the petitioner was promoted as Financial Adviser and Chief Account Officer in 2008 and is now about to retire in July, 2011. It is informed that the respondent no.2 is now working as Senior General Manager, Estate Department and has another two years of service left. The counsel has with reference to S.B. Bhattacharjee Vs. S.D. Majumdar AIR 2007 SC 2102 para 13 contended that if this Court were to held that the petitioner was wrongfully not considered for appointment in December, 1993 through direct recruitment, a notional DPC ought to be directed and the case of the petitioner for appointment be directed to be considered and if the petitioner is selected, he would be entitled to all benefits of such appointment.

26. I have not been able to find that the petitioner who was admittedly not eligible for direct appointment has been discriminated against qua the respondent no.2. While there was enough material before the Selection Committee to find that the respondent no.2 had the requisite managerial experience including 5 years experience as Head of the Division, the petitioner at the contemporaneous time did not even claim to be eligible. Even otherwise, there can be no negative discrimination in law.

27. No case even otherwise now after 15 years for granting the relief of quashing the appointment of the respondent no.2, when petitioner was admittedly not eligible, is made out. The petitioner is therefore not found entitled to any relief.

28. The counsel for the petitioner at this stage states that the petitioner be granted liberty to approach the respondent no.1 for fixation of his seniority.

29. Since the case of the petitioner for fixation of seniority has not been pressed in this Court owing to the material therefor having not been placed before this Court, liberty is so granted to the petitioner.

The writ petition is dismissed with no order as to costs and with liberty aforesaid to the petitioner.

RAJIV SAHAI ENDLAW (JUDGE) 23rd February, 2011 gsr/bb