Amita vs Institute Of Home Economics & Ors.
2013 Latest Caselaw 5660 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No. 315/2011
%                                                 6th December, 2013

AMITA                                                  ......Petitioner
                         Through:    Mr. Pankaj Sinha and Ms. Nupur
                                     Grover, Advocates.


                         VERSUS

INSTITUTE OF HOME ECONOMICS & ORS.         ...... Respondents

Through: Ms. Beenashaw Soni, Adv. for R-1.

Mr. Ranjeet Kumar, Adv. for R-2.

Mr. Sourik Mukherjee and Mr. Saurabh Banerjee, Advocates for R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner seeks directions from this Court for

quashing of the appointment made of the respondent no.2- Ms. Sharmila

Rathee, an orthopedically handicapped candidate, as Lecturer/Assistant

Professor to the post for the Department of Bachelor of Elementary

Education in the respondent no.1/Institute of Home Economics. Before me,

four grounds are urged on behalf of the petitioner for quashing of the

appointment of the respondent no.2. First ground which is urged is in terms

of Sections 33 and 36 of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 (in short „the Act‟) by

contending that respondent no.1 could not have appointed to the post

reserved for Visually Handicapped (VH) person an Orthopedically

Handicapped person. It is argued that interchange of category is not

permissible as per Section 36 of the Act except from the third year whereas

interchange has been done in the first year itself. The second argument

which is urged is that once the action of respondent no.1 is legally incorrect,

i.e the respondent no.1 could not have legally appointed the respondent no.2

in violation of Sections 33 and 36, any delay in filing of the writ petition

cannot prejudice the petitioner and the appointment of the respondent no.2

has to be declared illegal and quashed. The third argument which is urged

before me on behalf of the petitioner is that respondent no.1 by the

impugned advertisement wrongly restricted the requirement of 55% marks at

the Master‟s level for the subjects only of Social Science and Language for

VH persons although the VH persons were sought to be appointed in the

separate education stream which is a specialized subject, and for which

stream the petitioner has the necessary qualification because petitioner has

an M.Ed degree with more than 55% marks from a recognized institute. The

fourth argument which is urged on behalf of the petitioner is that once the

petitioner has M.Phil qualification, there is no requirement for the petitioner

to have 55% marks at the degree level.

2. For the purpose of appreciation of the arguments urged on behalf of

the petitioner, it is necessary at this stage to reproduce and refer to Sections

33 and 36 of the Act and which read as under:-

"33.Reservation of posts.-Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent, each shall be reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any departmental or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

36. Vacancies not filled up to be carried forward-Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer

shall fill up the vacancy by appointment of a person, other than a person with disability:

Provided that if the nature of vacancies in an establishment is such that a given category of person be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."

3. The first two arguments which are urged on behalf of the petitioner

can be taken together and are accordingly being decided together.

4. A reading of the aforesaid sections of the Act together does show that

there are three separate categories of handicapped persons as per Section 33

and as per Section 36 so far as the first year is concerned, if the handicapped

person of a particular category is not available, then the vacancy has to be

carried forward for the next year. Section 36 then provides that in the second

year (and not in the third year as argued by the petitioner) if the specific

handicapped/disabled person under a particular category under Section 33 is

not available, then another disabled/handicapped person of a different

category as stated in Section 33 can always be accommodated in the post in

question. In any case, this I am only stating to complete the narration for the

purpose of decision because the issue in the present case will not turn on

whether it is in the second year or in the third year(as argued by the

petitioner) that interchanging can be done because in the present case it

could not be disputed before me on behalf of respondent no.1 that the

interchange was done in the very first year itself, however, the interchange

for a VH person to an orthopedically handicapped person is sought to be

justified on the ground that there were many posts which were available and

since in spite of repeated endeavours posts could not be filled in of the

handicapped persons, thus, respondent no.1 appointed respondent

no.2/orthopedically handicapped person against the post advertised for a

visually handicapped person.

5. In my opinion, the argument which is urged on behalf of the

respondent no.1 that they could interchange the post in the first year itself,

and there was no need of carrying the vacancy for the second year on the

ground that there were many posts which were available for being filled in

of handicapped persons, the same is a misconceived argument because if

such an argument is permitted, the same will violate the categorical language

of Section 36 of the Act as per which in the first year if the specified

handicapped category person is not available, vacancy of that specified

disabled category will have to be carried to the next year. Therefore, if I was

to go as per the language of Sections 33 and 36, and provided the other

issues were also held in favour of the petitioner, then petitioner would have

been granted the relief because respondent no.2 was appointed by

interchange of the category in the first year itself. However, the relief

claimed of quashing of the appointment of the respondent no.2 cannot be

granted because the writ petition is barred by delay and laches and the

reasoning for which I am giving in detail hereinafter.

6. The facts which emerge from the record are that the advertisement in

question for the post was issued on 2.6.2009. Pursuant to this selection

process, the respondent no.2 has been appointed by respondent no.1 in

January, 2010. The writ petition however has been filed only one year later

in January, 2011. The issue is that the respondent no.2 having got

employment, and having worked for one year, whether the writ petition

should be allowed and vested rights which the respondent no.2 has got by

appointment should be negated by quashing of her appointment on the

ground of violation of Section 36 of the Act by the respondent no.1.

7. At this stage, I may also refer to another argument being the third

argument because that argument will also have to be rejected on the ground

of delay and laches, and which is the argument that respondent no.1 has

wrongly restricted the appointment of Lecturers/Assistant Professors in the

Department of Bachelor of Elementary Education only to persons having

Social Science and Language in post graduation degrees, although,

appointment is being made of Lecturers/Assistant Professors in another

specialization of education for which M.Ed degree is sufficient as per serial

no.9(iv) of the subject advertisement dated 2.6.2009.

8. It is an undisputed proposition of law, and for this purpose I need not

refer judgments, that if a thing has to be done in a particular manner the

same should be done in that particular manner and if the required thing is not

done in a particular manner, the action is illegal and has to be quashed.

However, this doctrine is necessarily conditioned by the fact, and more so

with respect to exercise of extraordinary and discretionary jurisdiction under

Article 226 of the Constitution of India, that a person who claims to be

aggrieved approaches the Court either within the limitation period or so far

as a writ petition under Article 226 is concerned with sufficient amount of

alacrity ie without delay and laches so that in the intermediate period no

third party rights come into existence which will then have to be

extinguished. No doubt, a legal right is always enforceable, however, that

legal right unless exercised in accordance with law and as per the time and

doctrine prescribed by law requiring necessary expedition, then, such legal

right claimed can be lost. It is not as if that the legal rights can never be lost

or have at all times and always to be enforced by Courts, much less while

exercising discretionary jurisdiction under Article 226 of the Constitution of

India.

9. I cannot agree with the arguments urged on behalf of the petitioner

that delay of one year cannot make a difference on the ground that once the

required thing ought to have been done in a particular manner and was not

done in a particular manner and hence the impugned action must fall,

inasmuch as, if I accept this argument then why not a period of one year but

also a period of 2 years or any larger period and so on because such larger

periods can be argued to be not material for justifying the non-cancellation

of appointment of respondent no.2. However, as already stated above, legal

rights if arise, unless they are exercised at the proper time, such legal rights

get destroyed on account of creation of third party rights in the interregnum.

Since petitioner has approached the Court with delay and laches, in the

pecuniary facts of this case I hence refuse to grant relief to the petitioner for

quashing an appointment of respondent no.2, another disabled person. The

first three arguments urged on behalf of the petitioner are rejected for the

reason that I cannot believe that petitioner should have kept quite although

the advertisement was issued in June, 2009, petitioner would have well

known if the petitioner was diligent that interviews would have been

conducted thereafter on the due dates in January, 2010, that the selection

process would have been completed and the appointments would have been

given within a short time thereafter. In my opinion, I cannot permit the

petitioner to sleep over the matter from June 2009 till January, 2011 and in

any case, not from June 2010 till January 2011 (when the writ petition was

filed) inasmuch as the petitioner if would have taken steps at the right point

of time, petitioner would have known that respondent no.2 has been

appointed by the respondent no.1 in January, 2010. Inaction of the petitioner

goes against the petitioner for rejecting the first three arguments urged on

behalf of the petitioner.

10. In the present case, so far as the challenge by the petitioner to

restriction upon the petitioner to have Master‟s degree percentage of 55%

only for Social Science and Language subjects, though appointment is being

made in an education stream, taking that this is the correct argument under

law, but this argument ought to have urged by filing this petition when the

advertisement was issued in June 2009 or before the final date for

submission of the applications, and not in January 2011 ie after one year of

completion of the selection process and appointment of the respondent no.2.

At the very best the filing of the petition to challenge the terms of the

advertisement can be extended instead of June 2009 till the selection

procedure/process is not completed in January 2010 only. Once however the

selection process is completed by January 2010, Courts in January 2011

would rightly hesitate to set aside the selection procedure because it is

because of the inaction of the aggrieved person/petitioner that the selection

process was completed. This position becomes further accentuated in equity

and law against the petitioner when after completion of the process there

takes place appointment of a candidate. This accentuated position becomes

far far more accentuated if the appointed candidate in fact has thereafter

worked for as much as one year in the post and in which period possibly

other opportunities may have come up and lost to the appointed candidate

whose appointment is sought to be quashed.

11. The final argument which is urged on behalf of the petitioner is that

once the petitioner in accordance with the requirement meets the M.Phil

qualification, then petitioner is not required to have 55% marks at the post

graduation level and imposition of such a criteria by the impugned

advertisement is illegal. Once again, this argument not only would stand

rejected in terms of the discussion given with respect to the first three

arguments urged on behalf of the petitioner because the same has been

raised with delay, however, this argument is liable to be rejected even

independently because it is for the employer to decide what are the terms

and conditions which an employee must satisfy i.e what should be the

eligibility criteria which an employee must satisfy for seeking employment

is decided by the employer. Of course, such criteria will have to be in

accordance with the rules which are laid down, however, unless the

requirement is found to be beyond the rules i.e the respondent no.1 could not

have prescribed a requirement of 55% marks at the post graduation level,

respondent no.1 was entitled to put such an eligibility criteria. Merely

because a candidate has a higher qualification cannot mean that for the lower

qualification a specific criteria which is prescribed by the employer does not

have to be met. It is open to the employer to require that a candidate must

have consistent good academic record, and therefore, requirement of having

55% marks and above at the post graduation level cannot be avoided or

exempted merely because the candidate has a higher qualification of M.Phil.

I therefore reject the fourth argument as urged on behalf of the petitioner.

12. Finally I may state that there is another reason for me to not exercise

my extraordinary jurisdiction under Article 226 of the Constitution of India.

This is because it has come out in course of hearing that respondent no.1

subsequently to the appointment of respondent no.2 in January 2010 in the

subsequent year had issued an advertisement for appointment to the post of

Visually Handicapped person in the stream of Resource Management, and

the counsel for the petitioner does not dispute that petitioner met the

eligibility requirement for applying to that post, however, it is urged that

petitioner did not apply to the post only for the reason that this post was not

reserved by the University for a Visually Handicapped person and therefore

University could not have advertised the post for being filled in by a

Visually Handicapped person. I have found this argument most

unimpressive to say the least because how can a petitioner, who claims

appointment as a Visually Handicapped person, be said to be prejudiced if

the University is appointing Visually Handicapped persons to streams other

than the streams which are already identified ie there is a proactive action

of the University which benefits the candidates such as the petitioner. Such

action taken by the University cannot be prejudicial for the petitioner.

Merely because the post was not reserved in the roster point system for

Visually Handicapped person does not mean that the same entitled the

petitioner not to apply the post in question once University advertises for

such a post by giving an additional stream for appointment to a Visually

Handicapped person and no one except the petitioner had challenged this

action of the University. Therefore it is clear that petitioner had a further

opportunity to seek appointment to the post of Visually Handicapped in the

Resource Management category with the respondent no.1, and which she

failed to avail of, and it is not a valid argument for the petitioner to contend

that merely because the post was not an identified post in the roster point

system for a Visually Handicapped person, hence the petitioner could have

ignored the selection process for that post. As already stated, a beneficial

action by extending appointment to a non-reserved category by giving the

same to a Visually Handicapped person, cannot be said to have prejudiced in

any manner to a person such as the petitioner.

13. In view of the aforesaid reasoning, the reliefs prayed for in the writ

petition cannot be granted, and the same is therefore dismissed, leaving the

parties to bear their own costs.

DECEMBER 06, 2013                             VALMIKI J. MEHTA, J.
ib