Delhi High Court
Airports Authority Of India vs Rajendra Wanchoo & Ors on 10 September, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10th September, 2012
+ LPA 473/2012
AIRPORTS AUTHORITY OF INDIA ..... Appellant
Through: Mr. K.K. Rai, Sr. Adv. with
Mr. Digvijay Rai, Advocate
versus
RAJENDRA WANCHOO & ORS ..... Respondents
Through: Ms. Padmini Gupat, Adv. for R-1
Ms. Anjana Gosain, Adv. for UOI
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (Acting Chief Justice):
1. This appeal is preferred against the judgment dated 16th May, 2012
passed by the learned Single Judge in the writ petition filed by the
respondent No.1. Respondent No.1 is an orthopedically handicapped person
and is admittedly covered by the definition of „disability‟ defined in Section
2(i) of The Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 („Disability Act‟ for short). The
Appellant is an authority which is supposed to follow the provisions of the
Disability Act and that includes reservation of 3% posts for persons with
disabilities.
2. In the year 2004, the Appellant had made appointment to the post of
Deputy General Manager (Personnel and Administration) and appointed
Respondent No.4. According to Respondent No.1, five posts of DGM
(P&A) were vacant in the year 2003 and one of them was to be filled up
from amongst the persons with disabilities. Since that was not done, the
appointment of Respondent No.4 to this post was challenged as violative of
the provisions of the Disability Act. The Respondent No.1 filed aforesaid
writ petition seeking writ of quo warranto and quashing the appointment of
Respondent No.4. It was also prayed that writ of mandamus be issued to
consider the petitioner to the post of DGM (P&A).
3. The learned Single Judge has accepted the contention of the
Respondent No.1 to the extent that since there were six vacancies for the
post of DGM, one of these had to be filled up from amongst the persons
with disabilities. However, as in the meantime Respondent No.4, who was
appointed on deputation, had already been repatriated to his parent
department in 2004, retired in the year 2012.
4. The Appellant has now issued another advertisement dated 1st April,
2012 publishing seven vacancies to the post of DGM (P&A) out of which
four posts for general category, one post for OBC, one post for SC and one
post for PWD(OH) - Persons with Disabilities had been earmarked. Taking
note of this fact, the learned Single Judge has directed that the Respondent
No.1 be appointed to the post meant for PWD (OH) in the following
manner:
"40. In the facts and circumstances of the present case, I
am of the considered opinion, the claim of the petitioner
persists since the post of DGM identified. Therefore, the
respondent no.3 is directed to appoint the petitioner
against the vacancy of General Category or against
person with disability (OH) w.e.f. the vacancy arose due
to the superannuation of respondent no.4. He shall be
given notional seniority from that date. No orders for
back wages, since the petitioner has not worked on that
post."
5. Grievance of the appellant is to the aforesaid directions vide which
the appellant is asked to make appointment of Respondent No.1. The
Recruitment Rules for this post have been produced on the basis of which it
is submitted that it is a post for open selection and many other persons who
are in PWD(OH) category could also apply for the post. It is also submitted
that in any case Court would not have given these directions for
appointment.
6. We had issued a notice limited to the aforesaid extent and have heard
the argument of counsel for both the parties. We find force in the
submission of learned counsel for the appellant that when the post is meant
for open selection and there could be other persons also eligible, the Court
could not act as the selection committee and give directions for appointment
of the respondent No.1 herein to the post of DGM (P&A). Respondent No.1
is the prima facie employee of National Building Construction Corporation.
It is not a case where he is working in the same department, i.e. with the
appellant and is seeking promotion (though in that case also, such direction
can be given only in exceptional circumstances). It is the function of the
selection committee, after considering all eligible candidates for the post, to
make selection. Respondent No.1 has only a right to be considered for the
post.
7. Having regard to the aforesaid position in law, we set aside the
direction contained in para 40 of the impugned judgment. Since the
advertisement vide which vacancies had been published is dated 1 st April,
2012 and last date for submission of the applications for this post must have
been over few months ago, we impress upon the appellant to constitute the
Selection Board / Interview Committee and also fix the date of interviews as
early as possible and finalize the selection process preferably within three
months from today.
8. The appeal stands disposed of in the aforesaid terms.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
SEPTEMBER 10, 2012
pk
