Delhi High Court
Kaushal Kumar vs Union Of India & Ors. on 6 December, 2012
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : December 06, 2012
+ W.P.(C) 7586/2012
KAUSHAL KUMAR ..... Petitioner
Represented by: Mr.N.L.Bareja, Advocate
Versus
UNION OF INDIA AND ORS ..... Respondents
Represented by: Mr.Rajinder Nischal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J. (Oral)
1. On an earlier occasion, competing at the Limited Departmental
Competitive Examination, the petitioner was granted the benefit of being an
OBC candidate in the form of age relaxation and merit being drawn in the
OBC category and thereby earned promotion from the rank of Constable to
Head Constable.
2. The grievance in the writ petition is to similar benefit not being
accorded at the Limited Departmental Competitive Examination for
promotion to the post of a Sub Inspector.
3. Only yesterday, granting relief in WP(C) No.6703/2012 in which
same counsel i.e. Mr.N.L.Bareja had appeared for the writ petitioner therein,
we had passed an order as under:-
"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."
4. Suffice would it be to state that a wrong in the past cannot be a
precedent. Law does not recognize any reservation or benefit for OBC
candidates in matters relating to promotion. In the past some Central Para
Military Forces were treating promotions through Limited Departmental
Competitive Examination as cases of initial appointment and some were not.
Those who were not treating it as promotions were reserving quotas for
OBC candidates and were additionally conferring benefit of age relaxation.
With the Government clarifying that promotions effected through Limited
Departmental Competitive Examination cannot be treated as initial
appointment and thus no quota reserved for OBC candidates, the petitioner
cannot claim any benefit, even age relaxation, as an OBC candidate for the
reason in matters of promotion the candidates who took initial appointment
as General Category candidates and those who took initial appointment as
OBC candidates must stand at par.
5. We dismiss the writ petition but without there being any order as to
costs.
(PRADEEP NANDRAJOG)
JUDGE
(MANMOHAN SINGH)
JUDGE
DECEMBER 06, 2012/dk
