Narender Kumar vs Uoi & Ors.
2011 Latest Caselaw 993 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 18th February, 2011

+                       W.P.(C) No.3259/2010

        NARENDER KUMAR                    ..... Petitioner
                Through:       Mr. Arun Bhardwaj with Mr.Nitin
                               Tyagi, Advocates

                               versus

        UOI & ORS.                             ..... Respondents
                  Through:     Mr.Ravinder Agarwal with Mr.Nitish
                               Gupta, Advocates

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

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

1. An off the cuff observation made by a Division Bench of this Court has resulted in a second round of litigation. The observation we have referred to was made when WP(C)No.6723/2001 was dismissed vide order dated 15.07.2003. In the said writ petition the petitioner questioned his being discharged as a recruit on account of not successfully clearing the training. Upholding the petitioner being discharged, it was observed that the Court was told that the respondents were offering alternative trades for

employment to failed candidates and thus it was directed that, subject to availability of a vacancy, petitioner would be entitled to be employed for an alternative trade. It may be noted that the petitioner was recruited as a constable (General duty) and was discharged inasmuch as he could not successfully clear the training as a recruit. The date on which the petitioner was discharged is 27.07.2001.

2. It may be noted here that on 14.04.2001 i.e. before petitioner's writ petition was decided and even before he was discharged, realizing that he was unable to withstand the rigorous training as a recruit to induct him as a constable, the petitioner sensed his being discharged and hence had applied for being accommodated in an alternative trade, but restricted his offer to be appointed only as a constable (Cook).

3. As per the respondents there was no vacancy for a constable (Cook) and being offered to opt for alternative trades like washerman, barber or safaiwala, refused to do so.

4. A call letter was sent to the petitioner when constable (cooks) were to be appointed requiring him to report for selection on 27.11.2003, which selection got postponed to 17.12.2003, but the petitioner lost out on account of being found to be short by 3 cm. As against the height requirement of 170 cm, petitioner's height was 167cm.

5. It may be noted that when the petitioner applied for being appointed as a constable (GD), the policy of recruitment in vogue stipulated height requirement being 167 cm. on

30.07.2001 a new policy came into being as per which the height requirement was stipulated as minimum 170 cm.

6. The only point urged by the petitioner is that since he was discharged on 27.07.2001, his entitlement for an alternative trade placement has to be as per the policy in vogue as of 27.07.2001.

7. Firstly, it may be noted that there was no policy in writing as per which alternative trades were offered to the recruits who were discharged on account of not being able to successfully undergo training. The only policy was of a permanent constable (General Duty) being injured or otherwise rendered medically unfit to work as a constable (General Duty) and his entitlement to be considered for alternative employment involving lesser physical duties. To put it pithily, the concept was of sheltered employment. This is obviously not applicable to recruits who have yet to be formally inducted in employment.

8. Be that as it may, assuming that the policy for permanent constables being entitled to be offered alternative trades was applicable to a recruit, it may be noted that there is not vested right for being offered an alternative trade employment. The right is to be considered, subject to availability of a vacancy, alternative trade employment. In other words the right to be considered would accrue only upon the availability of alternative trade vacancy. If this be so, the law applicable on the date when right to be considered accrued would be the law applicable.

9. In the instant case, when as a recruit, petitioner was discharged on 27.07.2001 there existed no vacancy as constable (cook) and thus the petitioner cannot claim any right under the then existing policy pertaining to physical standards. By the time a vacancy was available, and this is when the right to be considered accrued, the standards had changed.

10. We find no merit in the writ petition which is dismissed.

11. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

FEBRUARY 18, 2011 mr