Dinesh Chandra vs Delhi High Court (Through ...
2011 Latest Caselaw 625 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P. (C) No. 9366/2009


%                                   Date of Decision: 3rd February, 2011


DINESH CHANDRA                                             ...PETITINOER

                                   Through:   Mr. R.K. Saini

                                   Versus


DELHI HIGH COURT                                          ...RESPONDENT
(THROUGH REGISTRAR GENERAL)
                     Through:                 Mr. Viraj R. Datar and
                                              Mr.    Chetan    Lokur,
                                              Advocates

CORAM:
HON'BLE MR. JUSTICE A.K.SIKRI
HON'BLE MR. JUSTICE M.L.MEHTA


1. Whether the Reporters of local papers            No.
   may be allowed to see the judgment?

2. To be referred to Reporter or not?               No.

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


A.K. SIKRI, J. (Oral)

1. The petitioner is employee of this Court who initially joined

services in the Delhi District Courts as Lower Division Clerk in

the year 1999. He was promoted to the post of Stenographer

in Delhi District Court in December, 2002. For some time his

services were placed at the disposal of this Court in diverted

capacity, however, with effect from 29th July, 2006 he was

given offer of appointment to the post of Personal Assistant of

this Court, which he accepted and soon became the employee

of this Court with effect from 1st August, 2006. In that

process, he had qualified the open competitive test and only

thereafter he was appointed to the post of Personal Assistant

in this Court. Sometime in January/February, 2008, an

advertisement was issued for filling up of 41 vacant posts of

Senior Personal Assistant through competitive test comprising

of written test, shorthand skill test and interview. Recruitment

rules for the post of Senior Personal Assistant provided for

filing up of 50% vacancies by promotion and 50% by way of

direct recruitment. The aforesaid 41 vacancies were to be

filled by way of direct recruitment. The existing employees of

this Court who fulfilled all the terms and conditions for

appointment to the said post under direct recruitment were

entitled to apply and to be considered. The petitioner, being

eligible for the post of Senior Personal Assistant, was called to

appear in the written test. He appeared in the said written

test and was successful therein. Thereafter, the petitioner

appeared in the shorthand test along with other successful

candidates of the written test. He qualified the said shorthand

test also. He was called for interview which was held on 17th

August, 2008. After facing the interview, a merit list of

selected candidates was prepared. The final result declaring

successful candidates on merit was displayed on 1st October,

2008. The petitioner found that his name did not appear in

that list. On inquiry, he came to know that since there were

some disciplinary proceedings pending against him, his name

was not included in the merit list of selected candidates for

that reason.

2. At this stage it would be necessary to point out that the

petitioner had received a memorandum dated 6th September,

2006 in which it was alleged that when one Shri Narender

Kumar, Bailiff from the Office of Administrative Civil Judge,

Delhi approached the petitioner on 4th September, 2006, to

serve bailable warrants upon him issued by Motor Accident

Claim Tribunals („MACT‟), Delhi for his appearance in that

Court, the petitioner misbehaved with him and tore the said

warrant. He was asked to submit his explanation. The

explanation of the petitioner was not found satisfactory and it

resulted in issuance of regular charge-sheet dated 4th July,

2007. Relying upon the aforesaid charges, it was decided to

hold a regular departmental inquiry against the petitioner on

the said charge. When the selection process for the post of

Senior Personal Assistant was initiated, until its culminating

into the final result on 1st October, 2008, the aforesaid

disciplinary proceedings were pending against the petitioner.

The petitioner felt aggrieved as his name did not appear in the

final selected list, and he found that the person who had

secured same marks as the petitioner was at serial number 33

in the said merit list. The persons below 33, were those who

had secured even lesser marks than the petitioner. The

petitioner thus perceived that action as illegal and submitted

his representation dated 4th September, 2008 which was

rejected by the High Court.

3. It so happened that in the departmental inquiry, the petitioner

was ultimately exonerated of the charges by the Enquiry

Officer in its report submitted in December, 2008. This report

was accepted by the disciplinary authority and thus enquiry

against the petitioner was dropped. After the examination in

the departmental enquiry the petitioner submitted another

representation dated 17th January, 2009. However this

representation was also rejected by Delhi High Court vide

memorandum dated 19th February, 2009. After obtaining

opinion on the basis of an application submitted under Right

to Information, the petitioner made another representation

which was also rejected and at that stage the petitioner filed

the instant writ petition challenging the aforesaid action of

non appointment of the petitioner to the post of Senior

Personal Assistant.

4. In this writ petition, the petitioner has prayed for quashing of

the memorandum vide which his representation had been

rejected and has also prayed for issuance of writ of

mandamus commanding the respondent to appoint the

petitioner to the post of Senior Personal Assistant with effect

from 1st October, 2008, i.e., the date from which the selected

candidates were appointed according to his position and with

all consequential benefits. Along with the writ petition, the

petitioner had also filed an application for interim measure in

the year when he was passed keeping one post reserved. That

order continues till date.

5. The respondents have filed the counter affidavit opposing the

prayers made in the writ petition. It is the case of the

respondents that the pending disciplinary proceedings against

the petitioner was valid ground for not appointing the

petitioner to the post of Senior Personal Assistant. The

respondents have, in this behalf, referred to Rule 6(2)

contained in Chapter 45 in Swamy‟s complete manual on

Establishment and Administration, as per which if some

departmental proceedings are pending against a Government

Employee and a charge sheet has been issued, the application

of such employee is not to be considered/forwarded. It is

however, explained that the aforesaid rule/instruction

contained therein are applicable to the petitioner also by

virtue of Rule 11 of Delhi High Court Establishment

(Appointment and Conditions of Service) Rules, 1972 which

incorporates the rules issued by the Central Government from

time to time and are applicable to Central Government

servants. It is also explained that the factum of pendency of

disciplinary proceedings against the petitioner was

communicated to the Selection Committee at the stage when

vigilance clearance was sought in respect of the selected

candidates. It was for this reason that the petitioner was not

to be selected in the list and since this fact was not known to

the Selection Committee or the Committee which had

proceeded with the aforesaid selection, the petitioner was

allowed to participate in the selection process.

6. Learned counsel for the High Court has also submitted that

the Selection Committee had put 41 persons in the selection

list (as there were 41 vacancies) and no waiting list or panel

was formed. It is for this reason that even after the petitioner

was exonerated in the inquiry he could not be appointed when

the selection process was over and complete and therefore his

representation was rightly rejected.

7. Challenging the aforesaid approach of the High Court,

Mr. Saini, learned counsel for the petitioner has argued that

undoubtedly the petitioner had made his mark in the selection

and should have been at serial number 33/34 and since there

were 41 vacancies he got sufficiently high merit to enable him

to get the appointment to the post of Senior Personal

Assistant. His submission was that the respondent could not

take shelter under Rule 6(2) contained in Chapter 45 in

Swamy‟s complete manual on Establishment and

Administration as the said rule was applicable only qua

Central Government servants and the employee of the High

Court is not a Central Government employee. He also

submitted that the said Rule is applicable to the Department

which has to forward the application of the concerned

Government employee to another

Ministry/Department/Office/UPSC where the selection process

is initiated. Thus, it is within the discretion of the forwarding

Department, whether to consider or not to consider the

application of such an employee against whom disciplinary

proceedings are pending and charge-sheet is issued and to

forward the same or not to other Department. It was also

submitted that once the application is entertained and the

concerned employee is allowed to appear in the selection

process in which he is successful, at that stage, such a rule

cannot be put in service to deny the appointment to the

selected candidate.

8. Mr. Saini, learned counsel for the petitioner further submitted

that respondent cannot take aid of Rule 11 of Delhi High Court

Establishment (Appointment and Conditions of Service) Rules,

1972. Only those Rules or the orders of the Central

Government which pertains to the „condition of service‟ and

rules or orders relating to appointment are not made

applicable, which would be clear from the bare reading of Rule

11. It was also argued by Mr. Saini, Advocate that the

petitioner was exonerated in the Departmental inquiry and

therefore the said embargo of disciplinary proceedings was no

more applicable and thus thereafter he would have been

offered the appointment to the post of Senior Personal

Assistant, more particularly, when all the 41 vacancies are not

been filled in as much as some of the persons who were

selected for the appointment did not join. He argued that

being an employee of this Court, the High Court could resort

to Sealed Cover Procedure and the result of the petitioner, on

the basis of the said selection could have been kept in sealed

cover which may be opened after the disciplinary proceedings

would be over, which resulted in his exoneration. Thus,

argued the learned counsel that from whatever angle the

matter is looked into, the petitioner is entitled to the

appointment to the post of Senior Personal Assistant on the

basis of aforesaid selection.

9. In order to appreciate the contention of the learned counsel

for the petitioner it would be necessary to reproduce Rule 6(2)

which is based on administrative instructions as well as Rule

11 of Delhi High Court Establishment (Appointment and

Conditions of Service), Rules, 1972, which reads as under:-

"In respect of all such matters regarding the conditions of service of Court servants for which no provision or insufficient provision has been made in these rules, the rules and orders for the time being in force and applicable to Central Government Servants shall regulate the conditions of service of the Court servants subject to such modifications, variations or

exception, if any, in the said rules, as the Chief Justice may, from time to time, specify.

Provided that the Registrar and Joint/Deputy Registrar belonging to Delhi Higher Judicial Service and Delhi Judicial Service respectively, shall be governed by the rules applicable to the said service."

10. Rule 6(2) in Swamy‟s complete manual on Establishment and

Administration compilation make the following reading:-

                     "6. Forwarding           of      application     to
               Ministries/Departments/other                Government
               Offices/UPSC---     The      following   instructions   is

supersession of the existing instructions contained in O.M. No. 11012/10/75-Estt. (A), dated 18.10.1975 and O.M. No. 42015/4/78-Estt, (C), dated 1.1.1979, are issued for guidance of all Administrative Authorities.

2. Application of a Government servant for appointment, whether by direct recruitment, transfer on deputation or transfer, to any other post should not be considered/forwarded, if-

(i) he is under suspension; or

(ii) disciplinary proceedings are pending against him and a chargesheet has been issued; or

(iii) sanction for prosecution, where necessary has been accorded by the competent authority; or

(iv) Where a prosecution sanction is not necessary, a charge-sheet has been filed in a Court of Law against him for criminal prosecution."

11. If we refer to the administrative instructions forming the basis

of the aforesaid Rule 6, it provides in no uncertain terms that

where disciplinary proceedings are pending against the

Government servant and the chargesheet has also been

issued to him in this behalf, his application for the post of

which he wants to apply/applies is not to be

considered/forwarded. This recourse of the Rule extends not

only to direct recruitment but even when such an

appointment is made on the basis of transfer on deputation or

to any other Department. The words „considered/forwarded‟

are of significance and have to be given due importance. The

tenor and sprit of the aforesaid administrative instruction is to

clearly debar a person, from even consideration for the said

post in case a departmental proceedings are pending against

such an employee. Therefore it is difficult to accept the

contention of Mr. Saini, Advocate that it is the discretion of the

forwarding Department to consider/forward the application of

such a Government employee and once the candidature of

such an employee is considered and he is allowed to undergo

the selection process, the aforesaid embargo would not apply.

It is stated at the cost of repetition that purport of the

aforesaid consideration is to debar such an employee to be

considered for the post.

12. The next question which falls for consideration is as to

whether these instructions are applicable to the employees of

the Delhi High Court. We have already reproduced Rule 11.

The expression which is found is „conditions of service‟. It

follows that the Rules and orders which are applicable to the

Central Government servants are made applicable to the

employees of this Court and are confined only to the

conditions of services and the instruction which relates to the

appointment would not be applicable at all. Our answer has to

be in negative.

13. In the first instance, it is to be noticed that Rule 11 is a part of

rules which are not confined to the conditions of service to

relate to the appointment as well.

14. Secondly, the rules regarding the appointment can be covered

by the expression „condition of service‟ in the context in which

Rule 11 is incorporated in these Rules. As pointed above, the

rule of which Rule 11 is a part, deals with not only the

condition of service but also with the appointment. Therefore,

in this context, the purpose of Rule 11 was to make applicable

all those rules and orders which were applicable to the Central

Government servants, in respect of which provisions in these

rules have not been made. We cannot give restrictive

interpretation to the scope of Rule 11 as sought to be

concluded by Mr. Saini. Once we examine the matter from

this perspective it is clear that the petitioner was not eligible

to be considered for the post in question as he was facing a

departmental enquiry. In this view of matter, merely because

his application was entertained and he was allowed to appear

in the exam, it would not confer any right upon the petitioner

to say thereby beginning illegal. Likewise, subsequent

exoneration in the departmental enquiry would also be of no

relevance or consequence. In such case there was no

question of resorting to Sealed Cover Procedure either. We,

thus, do not find any merit in this petition and dismiss the

same.

A.K.SIKRI (JUDGE)

M.L.MEHTA (JUDGE) FEBRUARY 3, 2011 AK