Dharam Pal vs Union Of India And Ors
2012 Latest Caselaw 6971 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision : December 05, 2012

+                            W.P.(C) No.6703/2012


       DHARAM PAL                                        ..... Petitioner
               Represented by:          Mr.N.L.Bareja, Advocate

                        Versus


       UNION OF INDIA AND ORS                     ..... Respondents
                Represented by: Mr.Himanshu Bajaj, Advocate for
                                R-1 to 4 with Dy.Comdt.Bhupinder
                                Sharma, BSF.
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. In spite of opportunity granted counter affidavit has not been filed.

2. Learned counsel for the respondents states that the counter affidavit could not be filed because draft comments received are inadequate.

3. It would be useless for us to adjourn hearing in the matter inasmuch as, for the reasons which we would soon be highlighting hereinafter, an appropriate counter affidavit would never be filed. The reason is, what we have been noticing in case after case whenever administrative lapses/wrongs are committed. Nobody being prepared to accept the wrong and the result is, either inadequate comments or beating about the bush or 'such and such paragraph is a matter of record' comments furnished to the counsel.

4. The issue raised in the writ petition pertains to reservation granted to OBC category candidates at the Limited Departmental Competitive Examination 2011 for promotion to the post of HC (GD).

5. The annexures filed along with the writ petition and especially Annexure P-1 would reveal that the respondents have admitted that appointments through Limited Departmental Competitive Examination are not direct recruitments but are by way of promotion; the mode of selection and empanelment for promotion being the Limited Departmental Competitive Examination and thus there can be no reservation for OBC candidates inasmuch as there is no rule or law which permits reservation in matter of promotion for OBC candidates.

6. Once this fact is admitted, the next thing is the logical conclusion which flows without any other fact being applied. The same is that there cannot be any reservation for OBC candidates inasmuch as, as of today, law only permits reservation for OBC candidates at the induction level posts and not for promotional posts. Thus, the act of earmarking posts at the promotional process for OBC candidates was wrong.

7. This is the reason why the para-wise comments being repeatedly sent to the counsel are missing the point i.e. are refusing to give in writing the response to the court with respect to the limited issue raised in the writ petition.

8. From the record of the respondents, as per file shown to us it is clear that a reference was made to the Ministry of Home Affairs to clarify whether there can be reservations for OBC candidates in promotional posts and whether the empanelment of candidates through Limited Departmental Competitive Examination to a higher post would constitute promotion. Regretfully, without awaiting the clarification from the Ministry of Home Affairs, the results were notified on September 20, 2011 and the opinion was rendered by the Ministry of Home Affairs in November, 2011.

9. It is apparent that the officer concerned is not furnishing adequate para-wise comments because he cannot justify the action to notify the

selection list on a date when the matter was referred for opinion to the Ministry of Home Affairs and the opinion was awaited.

10. We dispose of the writ petition quashing the selection/appointment list of HC (GD) pertaining to Limited Departmental Competitive Examination 2011 conducted by CRPF and issue a mandamus to redraw the list excluding any reservations therein for OBC candidates.

11. The merit list would be re-prepared as per merit position of the candidates at the Limited Departmental Competitive Examination 2011 and promotions effected accordingly.

12. If our decision would entail reversion of persons wrongly promoted, the same would be done. It would also be open to the department, if it does not want to revert anyone, to create supernumerary posts, but in such circumstances those candidates would be dove-tailed for purposes of seniority to the post of HC (GD) at the bottom of those who earn promotion on merits.

13. Needful would be done within six weeks.

14. No costs.

15. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE DECEMBER 05, 2012/jk