Sri Guru Tegh Bahadur Khalsa Post ... vs Union Of India & Ors.
2012 Latest Caselaw 4068 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 11th July, 2012

+                             W.P.(C) No.1343/1998

       SRI GURU TEGH BAHADUR KHALSA POST
       GRADUATE EVENING COLLEGE                          ..... Petitioner
                    Through: None.

                                 Versus

    UNION OF INDIA & ORS.                               ..... Respondents

Through: None.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition impugns the decision dated 10.02.1998 and the letter

dated 18.02.1998 of the respondent No.2 National Commission for

Scheduled Castes and Scheduled Tribes (since, National Commission for

Scheduled Castes) (hereinafter referred to as Commission), holding the

Principal of the petitioner College (since known as Sri Guru Nanak Dev

Khalsa College, as borne out from the website) to have willfully and

deliberately avoided to follow the Department of Personnel & Training

(DOPT) circular to fill up the post of Administrative Officer and Senior

Personal Assistant to the Principal earmarked for Scheduled Caste

incumbents and consequently cancelling the appointment made to both the

said posts and seeking a compliance report from the petitioner College.

Notice of this petition was issued and vide ex parte order dated 23.03.1998

the impugned decision dated 10.02.1998 of the Commission and directions

contained in the letter dated 18.02.1998 of the Commission stayed. Counter

affidavits have been filed by the Commission and the respondent No.4 Delhi

University & Colleges Scheduled Castes / Scheduled Tribes Employees

Welfare Association. No counter affidavit is filed by the respondent No.1

UOI. Rule was issued in the petition on 13.07.2000 and the interim order

made absolute till the disposal of the writ petition. The petition was listed

for hearing last on 02.03.2010, 03.01.2012 and 13.04.2012 when none

appeared for either of the parties. Today also, inspite of the matter having

been kept pending for a considerably long time, none has appeared for either

of the parties. Considering that the writ petition is of the year 1998 and

further considering the Vision Statement announced by the Chief Justice of

India for the current year, of ensuring that the Courts are free of arrears of

more than five years old cases, it is not deemed expedient to await the

parties any longer. Though the petition is liable to be dismissed for non

prosecution but considering the fact that Rule was issued, it is deemed

expedient to express opinion on merits. With this intent the record has been

gone through.

2. The impugned decision dated 10.02.1998 of the Commission is inter

alia as under:

"The post of Administrative Officer following R&P Rules provides 50% direct recruitment and 50% departmental promotion of the internal candidate. Following the 40 point roster, the post of Administrative Officer is at point No.1 and reserved for Scheduled Caste. The post of Administrative officer had fallen vacant due to the retirement of Sardar H.S. Sandhu in October 1990, but this post was filled up on 1 st November 1990 by Sardar Devender Singh, a general candidate and the post was carried forward for next recruitment year and the carried forward post meant for Scheduled Caste was given to general candidate namely Mrs. Kusum Saxena in 1997 again in the end of 2 nd recruitment year. This is a clear violation of the reservation policy willfully and deliberately.

As regards to fill up the post of Sr.P.A. to the Principal, following the R&P, it provides 100% direct recruitment. Following the 40 and 200 point Rosters, this post is also reserved for Scheduled Caste, but it appears from the records itself as well as from the report of the Liaison Officer that this post has also been filled up by general candidates in two recruitment years even without being carried forward.

The appointments of Administrative Officer and Sr.P.A. to the Principal are in violation of reservation policy. These appointments ought to have been cancelled failing which the Scheduled Caste candidates shall not be able to avail opportunity of reservation in the 3rd recruitment year. It will be lapsed as per DOPT norms.

It, however, appears from the case itself that there is no departmental suitable candidate for the post of Administrative Officer and Sr.P.A. to the Principal.

The mode of recruitment proves itself that Principal, SGTB College (Evening), Karol Bagh willfully and deliberately avoids to follow the DOPT's circular to fill up these posts earmarked for Scheduled Caste incumbents.

The Commission is of the opinion that both the appointments are liable to be cancelled forthright failing which the Commission has got no alternative but to fix the responsibility on the concerned authority following the DOPT's circular. The authority is also directed to report compliance.

Copy of the findings be sent to the Registrar, Delhi University and the Principal of the concerned college along with Sh. H.H. Baa, Liaison Officer, Delhi University to pursue the findings. Gist of the findings may be communicated to Mr. Lakhan Singh, General Secretary, Delhi University and Colleges SC/ST Employees Welfare Association, the petitioner for information."

3. The impugned letter dated 18.02.1998 of the Commission to the

petitioner is as under:

"To The Principal S.G.T.B. Khalsa College (E) Dev Nagar, New Delhi -110 005

Sub: Representation from Delhi University & Colleges SC/ST Employees Welfare Association regarding non- following of reservation in S.G.T.B. Khalsa College in filling up the post of A.O.

Sir,

I am to refer to the above mentioned subject and to enclosed herewith findings of this Commission. Compliance report may please be furnished to this Commission within 30 days of the receipt of this letter for the information of the Hon'ble Member."

4. The challenge by the petitioner to the aforesaid decision and letter of

the Commission is three fold. Firstly, it is stated that the post of

Administrative Officer to which objection is taken was filled up in

accordance with the rules, guidelines and procedure prescribed by the

University of Delhi; that the post was advertised and a Selection Committee

constituted which on the basis of written test and interview filled up the said

post; that it was noted by the Departmental Promotion Committee that even

though this point in the 40 Point roaster is for a scheduled caste candidate, a

general category candidate was being promoted as there was no scheduled

caste candidate in the feeder post and the scheduled caste point was carried

forward to the next point in the roaster. With respect to the post of Senior

Personal Assistant to the Principal, it is stated that the same was also filled

up on the basis of recommendations of the Selection Committee. Secondly,

it is contended that Article 338 of the Constitution of India under which the

Commission has been constituted, does not empower the Commission to

issue any declaration, mandate, injunction or order to any educational

institution or authority as has been done in the impugned decision / letter;

Article 338 only empowers and authorizes the Commission to make reports,

recommendations as to the measures that should be taken by the Union or

any State for the effective implementation of the safeguards and other

measures for protection, welfare and socio-economic development of the

Scheduled Castes; that the impugned decision / direction is thus without any

jurisdiction and beyond the purview of Article 338 of the Constitution of

India. Reliance in this regard is placed on All India Indian Overseas Bank

SC and ST Employees' Welfare Association Vs. Union of India (1996) 6

SCC 606. Lastly, it is contended that the directions even if valid are in

violation of the law laid down in Chakradhar Paswan Vs. State of Bihar

(1988) 2 SCC 214 to the effect that there can be no reservation, either for

recruitment at initial stage or for filling up future vacancy under Article

16(4) of the Constitution, when there is only one post in cadre, as excessive

reservation to the extent of 100% cannot be upheld.

5. The Commission in its counter affidavit, though has justified its

decision dated 10.02.1998, has pleaded that it has therein "simply observed

that it is of the opinion that both appointments are liable to be cancelled.

Thus, the Commission / respondent No.2 has given an opinion that the

appointments are not in accordance with law and nothing more than that." It

is thus the plea of the Commission that having not issued any direction, it is

not in violation of the dicta of the Apex Court in All India Indian Overseas

Bank SC and ST Employees' Welfare Association (supra). Rather it is

expressly stated that "no direction has been issued."

6. The respondent No.4 Delhi University & Colleges Scheduled Castes /

Scheduled Tribes Employees Welfare Association, on whose complaint the

Commission had acted, in its counter affidavit has sought to justify the order

of the Commission on merits relying on Union of India Vs. Madhav (1997)

2 SCC 332 holding that reservation to single post by applying rule of

rotation is not violative of Article 14 and 16(1) and that reservation could be

provided even to isolated posts on the basis of rule of rotation. The

respondent No.4 also however in its counter affidavit has admitted that the

jurisdiction of the Commission and the impugned communication dated

18.02.1998 of the Commission, is merely recommendatory in nature. It is

further pleaded that the earlier judgments of the Apex Court in Chakradhar

Paswan (supra) and Bhide Girls Education Society vs. Education Officer,

Zila Parishad, Nagpur 1993 Supp (3) SCC 527 are no longer good law in

view of Madhav (supra).

7. It would therefore transpire that the respondent No.4, on whose

complaint the Commission passed the order and issued the letter dated

18.02.1998 as well as the Commission itself have admitted that the

impugned decision and the letter do not issue any direction to be

mandatorily complied with by the petitioner College, as the language thereof

would suggest. In view of the said admission of the contesting respondents,

the apprehension with which the writ petition was filed stands allayed.

8. As far as the challenge on merits to the decision / finding of the

Commission is concerned, need is not felt to adjudicate the same particularly

when no aspirant to the either post, belonging to Scheduled Caste has come

before this Court in the last so many years seeking quashing of the

appointments held by the Commission to be bad and seeking his / her own

appointment in lieu thereof. Also, there are other subsequent developments,

of which judicial notice can be taken, which also dissuade this bench from

ruling on the merits of the findings of the Commission.

9. Even though no plea to the said effect is taken in this petition but the

petitioner now claims to be a minority educational institution, also held so

by the order dated 19.07.2011 by the National Commission for Minority

Educational Institutions established under the National Commission for

Minority Educational Institutions Act, 2004. Rather, the petitioner and

certain other Institutions under the management of Delhi Sikh Gurdwara

Management Committee constituted under the Delhi Sikh Gurdwaras Act,

1971 have filed writ petitions in this Court averring that they are not bound

by the guidelines issued by the University of Delhi regarding reservations

for OBCs in appointments and recruitments. In intra-court appeals arising

out of the said writ petitions (being LPA No.464/2012 preferred by the

petitioner), a Division Bench of this Court has vide order dated 25.06.2012

granted interim relief.

10. Once the petitioner is found to be a minority educational institution,

the Supreme Court in Re: The Kerala Education Bill case [1958] 1 SCR

995 and in The Ahmedabad St. Xavier's College Society Vs. State of

Gujarat AIR 1974 SC 1389 has held minority educational institutions to be

having a right to administer i.e. right to choose its own teachers.

Subsequently, in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8

SCC 481, it has been held that aid cannot be denied to such minority

educational institutions for the reason of not fulfilling guidelines as to

reservation. Reference may also be made to Sindhi Education Society Vs.

Chief Secretary, Government of NCT of Delhi (2010) 8 SCC 49 holding

that the Delhi School Education Rules, 1973 providing for reservation in the

matter of appointment are inapplicable to minority aided schools. The said

judgments have been followed by a Division Bench of this Court in Queen

Mary's School Vs. UOI (2011) 185 DLT 168.

11. The aforesaid would also show that the controversy in which decision

has been rendered by the Commission and which decision is challenged in

this petition, may now no longer be surviving.

12. For all the aforesaid reasons, the writ petition is allowed to the extent

of holding that the petitioner College is not under compulsion to comply

with the impugned decision dated 10.02.1998 and the impugned letter dated

18.02.1998 of the Commission and the Commission has also admitted that it

is not intending to take any action against the petitioner College for such non

compliance. However, if in future any other authority takes any action

against the petitioner on the basis of the said decision, the petitioner shall be

entitled to contest the same on all grounds available to it.

No costs.

RAJIV SAHAI ENDLAW, J

JULY 11, 2012 „gsr‟