Sangeeta James & Others vs Union Of India & Others
2011 Latest Caselaw 4892 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                Writ Petition (C) No.1196 of 2002


                                 Reserved on: 19th September, 2011
%                             Pronounced on: 30th September, 2011



      SANGEETA JAMES & OTHERS                      . . . PETITIONERS

                             Though:     Mr. Pankaj Kumar, Advocate.


                             VERSUS


      UNION OF INDIA & OTHERS                     . . .RESPONDENTS

                             Through:    Mr. R.L. Garg, Advocate for
                                         the Respondent Nos. 1 & 2.

                                         Mr. Arjun Chawla, Advocate
                                         for the Respondent No.6.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MS. JUSTICE INDERMEET KAUR

      1.    Whether Reporters of Local newspapers may be allowed
            to see the Judgment?
      2.    To be referred to the Reporter or not?
      3.    Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. The petitioners who are three in number and respondents 3 to

7 are all working in the Office of Director, Central Hindi

Directorate (respondent No.2). They were all appointed as

Lower Divisional Clerk (LDC) in the Office of the respondent

No.2 and the date of appointments are as under:

Sangeeta James - Petitioner No.1 - 23.1.1989

Rita Dev - Petitioner No.2 - 15.12.1987

Pankaj Rana - Petitioner No.3 - 14.12.1987

Asha Rani Kalra - Respondent No.3. - 15.6.1972

Shanti Bala - Respondent No.4 - 23.12.1976

Dharamvir Singh - Respondent No.5 - 7.12.1976

Rooma Shara - Respondent No.7 - 14.5.1985

Sita Chopra (dead) - - - 15.12.1992

2. The method of appointment, recruitment and qualification in

the Central Hindi Directorate is governed by the Central Hindi

Directorate Rules (hereinafter referred to as „the Rules‟),

which have been notified vide GSR No.696 dated 4th June,

1977. As per the Rules , the posts of Upper Divisional Clerk

(UDC) is required to be filled up 75% by promotion from

amongst LDC working in the Central Hindi Directorate

(CHD)/Commission for Scientific & Technical Terminology

(CSTT) having eight years experience in the grade and the

remaining 25% posts of UDC are to be filled up by

promotion on the basis of competitive examination from

amongst LDC working in CHD/CSTT and having at least five

years service in the grade. The first vacancy under 25%

quota became available in 1982, which was reserved for

Scheduled Tribe (ST). The next vacancy became available in

1989 and efforts were made in 1990 to hold the Test, but it

could not be held on account of administrative reasons. That

the vacancies falling under 25% quota could not be filled up

on regular basis, but were filled on ad hoc basis.

3. The petitioners have learnt that the vacancies under 25%

quota fell vacant in the following years:

            1984 -         Reserved Category

            1987 -         General Category

            1990 -         General Category

            1993 -         General Category

            1994 -         General Category

            1995 -         General Category

            1996 -         Anticipated General Category

4. In 1995, the CHD issued a Circular stating that the proposed

Test of LDC for filling up the post of UDCs in CHD would be

held on 8th and 9th July, 1995. There were 20 candidates,

who had applied for the Written Test. The said Test was

postponed due to administrative reasons and the same was

directed to be held on 29th and 30th July, 1995. It was again

postponed. The respondent No.2 issued a Circular on 26th

December, 1995 stating that Departmental Test of LDC for

filling up the posts of UDC in Central Hindi

Directorate/Commission for Scientific and Technical

Terminology would be held on 6th and 7th January, 1996. The

said Test was to be held in 4 subjects, i.e., English, Noting &

Drafting, Office Procedure and General Knowledge and Hindi.

All 20 candidates appeared in the Departmental Competitive

Examination. The petitioners, respondent Nos.3, 4, 7 and one

Smt. Sangeeta Chopra also appeared in the examination. On

23.1.1996, the petitioners were declared unsuccessful in the

Departmental Competitive Examinations and were placed at

serial No.2 to 4 in the Merit List. It may be stated at this

stage that the respondent No.3 and 4 failed to clear the

Written Test whereas the respondent No.5 did not appear in

the said examination. Thereafter, necessary promotion

orders(s) were issued by the respondent No.2 in the month of

March, 1996 an the petitioners and the other two selected

candidates started discharging their duties as UDC in the

office of respondent No.2.

5. In April, 1996, the respondent Nos.3 to 5 filed an application

challenging the promotion of the petitioners and other

selected candidates to the post of UDC. The Central

Administrative Tribunal (hereinafter referred to as „the

Tribunal‟) vide its judgment dated 23rd January, 2000 allowed

the O.A. and quashed the promotion order of the petitioners

and other selected candidates. The Tribunal directed the

official respondents to hold a review departmental promotion

committee for the purpose of conducting fresh limited

departmental competitive examination in the light of the

observations made in the judgment. The Tribunal was of the

view that the clubbing of posts was illegal and void.

6. Against the judgment passed by the Tribunal, the petitioners

had filled a writ petition in this Court. The said petition came

to be numbered as W.P. (C) No.945/2000.

7. This Court vide orders dated 6th November, 2011 allowed the

petition of the petitioners herein holding that the O.M. dated

24th December, 1980 was inapplicable to in the present case

inasmuch as the said O.M. applied to selection posts whereas

the posts in question were non-selection posts. However, this

Court did not consider the applicability of O.M. dated 10th

April, 1989 since the same was not placed before the

Tribunal. This Court while setting aside the judgment dated

21st January, 2000 remanded the matter back to the Tribunal

to consider the applicability of the O.M. dated 10th April, 1989.

This Court directed that it shall be open to private

respondents to amend their counter and to take up the new

plea. This Court further directed that the petitioners‟ present

position and status shall remain undisturbed and interim order

passed by this Court shall remain intact till the disposal of the

O.A.

8. Vide impugned judgment, the Tribunal has held that the O.M.

dated 10th April, 1989 was substantially the same like O.M.

dated 24th December, 1980. The Tribunal has also held that

the said O.M. dated 10th April, 1989 applied to non-selection

posts as well. The Tribunal, accordingly, held that the

selection by the DPC was in contravention of instructions

contained in O.M. dated 10th April, 1989. The Tribunal

directed the department to hold review DPC for the purpose of

conducting Limited Departmental Competitive Examination for

each year when the vacancy had arisen separately.

9. Challenging the aforesaid order, the present writ petition is

filed under Article 226 of the Constitution of India seeking

judicial review of the orders passed by the Tribunal. In this

petition, the petitioners have also stated subsequent

developments, which have taken place, viz., respondent No.3,

Asha Rani Kalra was promoted as UDC under 75% quota as

far back as in 1998. She is also given two financial

upgradations under the scheme of Assured Carrier

Progression (ACP). Respondent No.4 is also given two

financial upgradations, one after the completion of 12 years

and another after 24 years of service under the same ACP.

10. It is clear from the aforesaid narration of facts that the

dispute relates to promotion from the post of LDC to UDC in

respect of 25% quota has to be filled up on the basis of LDCE.

As selection in this behalf was made by the DPC on 6th and

7the January, 1996, which pertained to vacancies that had

arisen during the period 1992 to 1996. The grievance of the

applicants in O.A., respondent Nos.3 to 7 herein was that one

singular examination by bunching of the vacancies for the

period 1982 to 1986m was contrary to O.M. dated 10th April,

1989. It was the grievance of the respondent Nos.3 to 7 in

the said O.A. that by the aforesaid procedure of conducting

one examination relating to these vacancies, their interest

had been adversely affected for promotion to UDC at each of

the stage. Para 3.1 an 6.4.1 of the said O.M. are relevant for

our purposes, which are extracted below:

"3.1 The DPCs should be convened at regular annual intervals to draw panels which could be utilized on making promotions against the vacancies occurring

during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, Integrity Certificates, Seniority List etc. for placing before the DPC. DPCs could be convened every year if necessary on a fixed date, e.eg. 1st April or May. The Ministries/Departments should lay down a time- schedule for holding DPCs under their control and after laying DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that Recruitment Rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the Recruitment Rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since amendments to Recruitment Rules normally have only prospective application, the existing vacancies should be filled as per the Recruitment Rules in force.

6.4.1 where for reasons beyond control, the DPC could not be held in a year(s) even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures:-

(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.

(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.

(iii) Prepare a „Secret List‟ by placing the select list of the earlier year above the one for the next year and so on."

11. On the reading of these paras, the Tribunal has come to the

conclusion that these instructions relate to promotion of

selection as well as non-selection posts, which clearly

mandate that actual number of regular vacancies in each of

the previous year(s) shall be determined and officers who

come within the field of choice with reference to the vacancies

of each year shall only be considered. The Tribunal also took

support from the judgment of the Apex Court in the case of

Union of India and Others Vs. N.R. Banerjee [(1997) 9

SCC 287], where Court, after considering similar instructions

as contained in O.M. dated 10th April, 1989 has held as under:

"If the annual panel cannot be prepared for any justifiable reason, year-wise panel of all the eligible candidates within the zone of consideration for filling up of the vacancies each year should be prepared and appointments made in accordance therewith."

12. In the writ petition filed by the petitioners, contention raised

is that the O.M. dated 10th April, 1989 would not apply to the

promotional posts under LDCE and it applies only to those

posts where the promotion is based on length of service and

not where the candidates are promoted on the basis of

Written Test.

13. Another submission of the petitioners is that the respondent

Nos. 3 to 7 have appeared in the Departmental Examination

and taken a calculated risk for promoting to UDC, cannot now

turn around and challenge the selection process as held by

the Supreme Court in the case of Chandra Prakash Tiwari

& Ors. Vs. Shakuntala Shukla & Ors. [AIR 2002 SC 2322],

Madan Lal Vs. State of Jammu & Kashmir [1995 (3) SCC

486 1995] and Om Prakash Shukla Vs. Akhikesh Sukla

[1986 SCC (supp.) 285].

14. We are of this opinion that the present petition warrants to be

allowed accepting the alternate submission of the petitioners.

It is not in dispute that except the respondent No.5, other

private respondents had appeared in the competitive test

without any reservations or questioning the course of action

taken by the official respondents in clubbing the vacancies. In

the identical circumstances, in the case of Chandra Prakash

Tiwari (supra), the Supreme Court held that when a

candidate appears at the examination without protest and

subsequently found to be not successful in the examination,

question of entertaining a Petition challenging the said

examination would not arise. That was also a case where the

major grievance raised, after examination, was that the

Selection Committee failed to prepare the list of each year,

keeping in view the number of vacancies in that year for

promotion of Police Officer from Sub-Inspect to Inspector. In

the case of Om Prakash Shukla (supra) and Madan Lal

(supra) were dealt with in the following manner:

"32. Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal and Ors. v. State of J&K and Ors. , wherein this Court as below:

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of the combined performance both at written test and oral interview, they have filed this petition. 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 round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when

the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."

33. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.

34. In that view of the matter, while we are not in a position to record our concurrence with the applicability of the doctrine of estoppel by conduct but by reason of

the decisions as cited from the Bar, we do feel it required to lend our concurrence to the submissions of Dr. Dhawan, on that score as noticed above."

15. The issue of Selection and clubbing was also answered, which

is as follows:

"40. It cannot thus be treated to be void but any irregularity which is of curable nature and can be cured. Dr. Dhawan made some comments as regards the situation in Uttar Pradesh in support of not having annual selections and thus clubbing. We are not, however, inclined to dilate thereon neither any credence can be put thereto by reason of our views expressed above. Clubbing in a later year may not be treated as fatal but as noticed earlier, curable, more so having regard to the fact that initiation of a selection process throughout the State would further take a considerable period of time and the Court's attitude presently being pragmatic and justice oriented should do away with technicalities as technicalities ought not to out-weigh the course of justice."

16. For the aforesaid reason alone, we allow this writ petition

making the rule absolute and set aside the judgment of the

Tribunal. As a consequence, O.A. filed by the respondent

Nos.3 to 5 before the Tribunal is dismissed. However, there

shall be no orders as to costs.

(A.K. SIKRI) JUDGE

(INDERMEET KAUR) JUDGE SEPTEMBER 30, 2011 pmc