Delhi High Court
Ramesh Kumar vs Union Of India And Ors. on 27 August, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 5865/2012
% 27th August , 2013
RAMESH KUMAR ......Petitioner
Through: Mr. Avadh Kaushik, Advocate.
VERSUS
UNION OF INDIA AND ORS. ...... Respondents
Through: Mr. B.V. Niren, Advocate for
respondent No.1.
Mr. S.K. Sharma, Advocate for
respondent No.2.
Mr. Amit Kumar, Advocate for
respondent No.3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The petitioner, Sh. Ramesh Kumar by this writ petition seeks
the relief of being appointed as a Peon with the respondent No.2/Veterinary
Council of India. Petitioner also hence challenges the appointment given to
the respondent No.3 by the respondent No.2 instead of appointing the
petitioner.
2. The facts of the case are that an advertisement was issued by
the respondent No.2 for appointment to two posts; one of LDC and second
of Peon. We are concerned with the post of Peon in the present case.
The only requirement as stated in the advertisement for being appointed to
the post of Peon was that the candidate must be 10 th class pass from a
recognized board. No experience which was required of the candidate has
been specified. The relevant portion of advertisement reads as under:-
Sl No. Name of No. of Maximum Scale of Pay Qualification & Experience
Post post Age Limit
1. LDC 01 27 yrs. Rs.5200- Essential:
20200+ G.P. (i) Matriculation of equivalent
Rs.1900/- from recognized
University/Board and
must have a speed of 40
w.p.m. in typing
2. Peon 01 27 yrs. Rs.5200-
20200+ G.P.
Rs.1800/- Essential:
(i) 10th Pass from a recognized
Board.
The advertisement states that if there are more candidates than required, then
test will be conducted. Test was in fact conducted and undisputed position
is that petitioner was put at rank No.1 and respondent No.3 was put at rank
No.5. No information was uploaded on the website of the respondent No.2
with regard to the result and also petitioner was not informed that he had
been put at rank No.1. Instead respondent No.3 was however given the
appointment. In response to the RTI queries raised by the petitioner, it
transpired that respondent No.3 was given appointment on account of
„experience‟. The relevant part of the response of the respondent No.2 dated
24.7.2012 for not appointing the petitioner and appointing the respondent
No.3 reads as under:-
"Point 3: In the advertisement experience column has already
been provided. Further, as per advertisement, under important Note at
No.4, the candidate was also directed to attach attested copies of
certificates in support of educational/professional
qualification/experience. Hence it itself implies that some weightage
shall be given to the experienced candidate. Hence, 5% weightage
for experience was given for selection to the Peon."
3. The only aspect urged before me for decision is whether the
stand taken by the respondent No.2 in the letter dated 24.7.2012 of giving
weightage for experience is a valid basis to deny appointment to the
petitioner and give appointment to the respondent No.3.
4. There are some cases which shock the judicial conscience of
Courts. I have no hesitation in saying that this is one such case. Illegalities
which some authorities resort to and perversion which is caused in the
interpretation of the qualifications required for appointment is best
understood in the facts of the present case. First of all, it may be noted that
in the advertisement which was published for appointment to the post of a
Peon it is nowhere specified that the person to be appointed as a Peon must
have experience. Of course, I wonder that what is after all „experience‟
which a person must have to be appointed as a Peon. Surely, and as the
saying goes, the job of a peon is not the job of a rocket scientist, and thus the
only requirement therefore which was given in the advertisement was of the
candidate to be 10th class pass from a recognized Board, and which
qualification indubitably the petitioner has.
5. Let us now see the relevant note point in the advertisement of
which shield is taken by the respondent No.2 to appoint the respondent No.3.
This point No.4 reads as under:-
"4. Candidate should attach passport size photograph and
attested copies of certificates in support of Educational/Professional
Qualification/Experience."
6. Surely, once the expression „educational/professional
qualification/experience‟ is as used in this note point No.4, then, the same is
used in the alternative because wherever qualification was required, there
only qualification would be sufficient and wherever qualification with
experience was required, then, both qualification and experience were
necessary. There cannot be interpretation of this note point of requiring
experience when in the main portion of the advertisement no experience is
required and the only qualification required is that the candidate must have
passed 10th class board exam.
7. In the present case, since in the advertisement with respect to
appointment of a Peon, no experience has been specified, and the only
qualification which was required as being essential for appointment was that
the candidate must be 10th class pass from a recognized Board (in fact, the
petitioner had cleared not only the 10th class Board but did 12th class also).
Thus petitioner was bound to be appointed in preference to respondent No.3
who secured only 5th rank as compared to 1st rank of the petitioner.
8. It is quite clear that the defence taken by the respondent No.2 is
a sham and for some reason only taken to favour and appoint respondent
No.3. The action of not appointing the petitioner is a fraud not only upon
the petitioner but also by the appointing authority and the selecting authority
upon the respondent No.2 itself. By this malafide, unfortunate and illegal
act damage has been caused both to the petitioner on account of his non-
appointment and to the respondent No.3 whose appointment will have to be
struck down because writ petition has to be allowed.
9. In view of the undisputed position which has emerged that the
petitioner had rank No.1 after completion of the selection process, the only
requirement/qualification for being appointed to the post of a peon was that
the candidate must be 10th class pass from a recognized Board and which
qualification if petitioner satisfied, there was no requirement of any
experience in spite of what is urged by the respondent No.2 on the basis of
note point No.4, writ petition is thus allowed and the petitioner is directed to
be appointed by the respondent No.2 to the post in question. Petitioner will
be entitled to the service benefits from the date from which he would have
join duties on being appointed. Appointment letter be issued to the
petitioner within a period of three weeks from today.
10. That leaves us with the issue as to what should happen so far as
respondent No.3 is concerned. Though I am surprised at the appointment of
the respondent No.3 over the petitioner, and which is quite clearly peculiar,
however in the facts and circumstances of this case, it would be enough
while cancelling the appointment of respondent No.3 and appointing the
petitioner to the post in question, it is directed that the respondent No.3 will
be paid a sum of `50,000/- as compensation by respondent No.2 on account
of respondent No.3 losing his services. It is also directed that whenever the
respondent No.2 now advertises afresh for the post of Peon or any other post
to which the respondent No.3 is qualified and suitable, then, on all things
being equal in the selection list for the new post for which appointment has
to be made, respondent No.3 will be given preference and issue of age bar
will not be raised against the respondent No.3. The respondent No.3 for the
period he has served with the respondent No.2 will get all service benefits as
applicable under the Rules and policies of the respondent No.2.
11. I have already stated that there are some cases which cause
great consternation in the mind of the Court and present is one such case.
Therefore, in the facts of the present case besides giving relief to the
petitioner, and also some relief to the respondent No.3, it is appropriate that
this judgment be placed before the governing body of the respondent No.2
and the governing body in view of the gross abuse of the appointment
process by the selection committee or person whoever is responsible for
effectuating at the first step the appointment of the respondent No.3 instead
of the petitioner to the post of Peon with the respondent No.2, the said
persons be proceeded against departmentally by the respondent No.2 in
accordance with the rules for causing illegal appointment of respondent
No.3. Strict action in accordance with the rules be taken against the persons
who are found responsible and accountable for committing the gross
illegality which has been found in appointing the respondent No.3 by the
respondent No.2. If the governing body of the respondent No.2 finds that
possible certain offences are also committed, then, the governing body of the
respondent No.2 is also directed to take appropriate action in accordance
with law against all the persons who are found responsible for bringing
about the first step selection and recommendation of illegal appointment of
the respondent No.3 and denying the appointment to the petitioner to the
post in question. Let an authorized officer of the governing body of the
respondent No.2 file an affidavit in this Court within six weeks that
necessary steps have been initiated as directed in terms of the present
judgment.
12. While disposing of the writ petition and allowing the same, list
this matter for compliance of directions which have been passed in the
present case on 21st October, 2013.
AUGUST 27, 2013 VALMIKI J. MEHTA, J.
Ne
