Balwant Kumar vs Union Of India & Ors.
2011 Latest Caselaw 5704 Del

     *         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 24th November, 2011

+                                  LPA 354/2011

%        BALWANT KUMAR                                       .... Appellant
                    Through:              Mr. Santosh Kumar, Adv.

                                      Versus

    UNION OF INDIA & ORS.                    ..... Respondents
                  Through: Ms. Anjana Gosain, Adv. for UOI.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may       Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?            Yes

3.       Whether the judgment should be reported           Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The appellant impugns the order dated 04.01.2011 of the learned

Single Judge dismissing W.P.(C) No.10847/2009 preferred by the

appellant as belonging to the OBC category and seeking a direction to

the respondents to allow him "to be subjected to interview" and to

grant him "benefits in compliance with / as per Hon‟ble Delhi High

Court‟s order of 30.04.2007 and as per their own letter of 9th April,

2008."

2. The appellant was vide letter dated 15.12.2000 of the respondent No.2

Airports Authority of India (AAI) appointed to the post of Senior

Superintendent (Engineer Civil) at Gaya Airport, Gaya on ad-hoc

basis for a period of six months only. However, the said ad-hoc

appointment of the appellant was continued till termination thereof

vide letter dated 30.11.2004. It was mentioned in the said termination

letter that the appellant had been appointed without any

advertisement, without calling candidates from Employment

Exchange and without following the recruitment procedure for any

appointment; that his appointment was thus irregular, illegal, void and

invalid; nevertheless, the appellant was being paid one month‟s salary

in lieu of notice period and retrenchment compensation. The

appellant along with certain others filed W.P.(C) No.19770-72/2004

challenging such termination. The said writ petition as also several

other petitions including those transferred to this Court, were decided

"amicably" vide order dated 30.04.2007. The said order records that

services of nearly 130 personnel working in different offices of

respondent No.2 AAI all over India were terminated on the ground

that they were appointed on ad-hoc basis without following the

recruitment process and further records the settlement arrived at as

under:

"1. Petitioner as well as other employees whose services were terminated on similar grounds would be given an opportunity for selection in the proposed recruitment of Group C and Group D posts.

2. For Group D posts, suitability of the candidates would be adjudged by interview and wherever applicable, a trade test for the specific occupation. Additionally, suitability may be adjudged on the basis of familiarity with office procedures, basic knowledge of reading and writing, identification of files, notings thereon etc.

3. For Group C posts, a written objective test, which would assess the aptitude, General Knowledge, the job knowledge, proficiency in

English language would be held. A typing test would also be held. However, those of the petitioners/ terminated employees who have qualified the typing test of the respondents earlier would be considered for exemption. This would be applicable where the record of typing test passed earlier is available. In addition, candidates would be interviewed.

4. Respondents would make available 50% of the vacancies for the petitioners and others whose services have been terminated subject to their qualifying the objective written / trade test, 50% vacancies to be filled based on the merit amongst the petitioners and others, whose services were terminated subject to their qualifying the written objective and trade test being selected in interview.

5. Age relaxation would also be made available to the petitioner and others whose services have been terminated. As regards weightage for experienced and knowledge peculiar to the respondent organization, the same stands provided by provision of 50% of the vacancies being made available to them."

3. The respondent No.2 AAI vide its letter dated 09.04.2008, with

reference to the order dated 30.04.2007 (supra) informed the appellant

that it had advertised vacancies in the grade of Junior Executive

Engineer (Civil) and Junior Executive Engineer (Electrical) and gave

a one time opportunity to the appellant to apply for one of the posts

which he may desire and have the qualifications for. The appellant

was further informed that though the last date for receipt of

applications as per the advertisement had already expired, the

appellant was still being given opportunity to apply.

4. The appellant in response thereto applied and appeared in the

examination held on 03.08.2008 for the said purpose.

5. Upon the appellant not being called for the interview, the appellant

first filed a writ petition in the Patna High Court and upon being

confronted as to how that Court would have jurisdiction, withdrew

that writ petition on 22.06.2009 with liberty to approach this Court.

Thereafter the writ petition from which the present appeal arises was

filed with the prayer as set out hereinabove.

6. The case of the appellant in the writ petition inter alia was that he had

through the medium of Right to Information Act, 2005 learnt that the

eligibility marks fixed for being called for interview pursuant to the

examination held on 03.08.2008 was 40% for General Category as

well as OBC Category candidates; that he had secured 35% marks and

for the reason whereof he had not been called for interview. The

contention of the appellant was / is that the eligibility marks could not

be the same for the General Category as well as the OBC Category

candidates; that the eligibility marks for the OBC Category candidates

ought to have been lower than for the General Category candidates

and had it been 35%, as also fixed for SC/ST Category candidates, the

appellant would have qualified to be called for interview; moreover,

as per the order dated 30.04.2007 in the earlier writ petition, 50% of

the seats have to be reserved for the candidates, as the appellant, who

were earlier appointed on ad-hoc basis and whose services had been

terminated and which had also not been done.

7. The respondent No.2 AAI filed a counter affidavit in the writ petition

in which, it was stated that the order dated 30.04.2007 in the earlier

writ petition was confined to Grade-C and Grade-D posts while the

post of Junior Executive Engineer (Civil) for which the petitioner had

applied and appeared in the exam held on 03.08.2008 was a Grade-B

post; that the said order thus had no applicability to the said post but

nevertheless facility of extension of date for making the application

had been given to the appellant as an ad-hoc employee whose services

had earlier been terminated. It is further pleaded in the counter

affidavit in the writ petition that the relaxation for the OBC Category

candidates stipulated in the advertisement for the said post was only in

age and not in the eligibility / cut off marks; that the appellant who

had not even qualified in the written examination had no right to be

called for interview. The respondent No.2 AAI in an additional

affidavit filed before the learned Single Judge also clarified that in the

advertisement published in the Employment News in February, 2008

for the said post, it was clearly provided that the number of posts may

vary; in the ultimate analysis, 65 posts belonged to General Category,

16 to the OBC Category, 9 to the SC Category, 7 to the ST Category,

2 to the Orthopaedically Handicapped Category and 1 to the Hearing

Handicapped Category. It is also reiterated that no candidate

belonging to the General or OBC Category with marks in the written

examination below 40% had been called for the interview. In yet

further affidavit filed by the respondent No.2 AAI before the learned

Single Judge, it is inter alia informed that the last candidate selected

from the General Category had secured 43% marks in the written test

and the last candidate selected from the OBC Category had secured

40% marks in the written examination and thus no wrong had been

done in not calling the appellant who had secured only 35% marks in

the written examination for interview. It was also informed that there

are 42 other candidates in the OBC Category between the appellant

and the last candidate from the said category who was called for

interview.

8. In the aforesaid state of affairs and pleadings, the learned Single Judge

did not find any merit in the writ petition preferred by the appellant

and dismissed the same.

9. The counsel for the appellant has relied on Apurva Vs. Union of

India 172 (2010) DLT 326 which concerns the Central Educational

Institutions (Reservation in Admission) Act, 2006 and which will

have no relevance here.

10. Insofar as the claim of the appellant to the benefit of the order dated

30.04.2007 in the earlier writ petition is concerned, we are of the view

that the same has no relevance to the application by the appellant for

the post of Junior Executive Engineer (Civil) for which the appellant

had applied and which it is not disputed is a Grade-B post. The order

dated 30.04.2007 was confined only to the Grade-C and Grade-D

posts. Though from the letter dated 09.04.2008 (supra) of the

respondent No.2 AAI inviting application from the appellant for the

said post, it does appear that the respondent No.2 AAI also was then

under the impression that the order dated 30.04.2007 would apply to

the post of Junior Executive Engineer (Civil) also but in the face of

the clear language of the order dated 30.04.2007 such misconception

even if any of the respondent No.2 AAI cannot create any rights in the

appellant and which do not flow from the order dated 30.04.2007.

Thus the claim of the appellant to be called for interview in

compliance of the order dated 30.04.2007 was misconceived.

11. De hors the order dated 30.04.2007, the only grievance of the

appellant with respect to the selection process for the said post is that

the respondent No.2 AAI was wrong in fixing the qualifying marks in

the written exam as 40% for both General as well as OBC Category

candidates. However, before we deal with the said aspect, we may

notice that the challenge in the writ petition was not to the selection

process. The writ petition was filed after the appointments had been

made and those appointed were not even impleaded as parties. The

counsel for the respondent No.2 AAI has also, in our view correctly,

relying on Rekha Vs. UOI 140 (2007) DLT 232 (DB) contended that

an aspirant who participates in selection process and does not succeed

is debarred from challenging the said process. The appellant herein

did not challenge the advertisement inviting applications for the posts;

he rather participated in the selection process and cannot be permitted

to challenge the same after remaining unsuccessful. The Supreme

Court in Amlan Jyoti Borooah Vs. State of Assam (2009) 3 SCC 227

has held that when a person appears in an interview without any

demur and having accepted the change in the selection procedure sub

silentio, by not questioning the same, he cannot later be permitted to

turn around and contend that the procedure adopted was illegal. It was

held that the petitioner in such case is estopped and precluded from

doing so, the ratio being that candidates who take part in the selection

process knowing fully well the procedure laid down therein cannot be

permitted to turn back and assail the same after having being declared

unsuccessful. Similarly, in Madan Lal Vs State of Jammu &

Kashmir AIR 1995 SC 1088 it was held that it is now well settled that

if a candidate takes a calculated chance and appears at the interview,

then only because the result of the interview is not palatable to him, he

cannot turn around and subsequently contend that the process of

interview was unfair or Selection Committee was not properly

constituted. It was held that when a person appears in the examination

without protest and when he finds that he could not succeed in the

examination he files a petition challenging the examination, the

Courts could not grant any relief to such a petitioner. To the same

effect is Union of India. V. N. Chandrasekharan (1998) 3 SCC 694,

K.H. Siraj v. High Court of Kerala AIR 2006 SC 2339 and Manish

Kumar Shahi v. State of Bihar (2010) 12 SCC 576. We may notice

that the appellant in the writ petition also did not seek any such

prayer.

12. We even otherwise do not find any merit in the contention of the

appellant of there being any requirement for the eligibility / cut off

marks for the OBC Category candidates to be lower than those

stipulated for the General Category candidates. The counsel for the

appellant has been unable to show any such right. The Supreme Court

in Chattar Singh v. State of Rajasthan (1996) 11 SCC 742 held that

SCs & STs stand as two separate classes while OBCs stand apart. It

was further held that it is illogical and unrealistic to think that

omission to provide same benefits to OBCs as were provided to

SC/STs is void under Articles 16(1) & 14 of the Constitution of India.

The Supreme Court denied relaxation of 5% in cut off marks to

OBCs.

13. Moreover, the appointments were made over two years back. As

aforesaid, there are as many as 42 candidates between the appellant

and the last candidate appointed from the OBC Category. The

appellant cannot be granted any relief in preference to those ahead of

him. For this reason also, we do not find any right in the appellant at

this stage.

14. There is thus no merit in the appeal. The same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE th NOVEMBER 24 , 2011 „gsr‟