Delhi University And Colleges ... vs University Of Delhi And Ors.
2013 Latest Caselaw 5663 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.858/2013

%                                                  6th December, 2013

DELHI UNIVERSITY AND COLLEGES ST&SC EMPLOYEES
WELFARE ASSOCIATION (REGD.)                ..... Petitioner
                 Through:   Ms. Arunima Dwivedi, Advocate.

                          Versus


UNIVERSITY OF DELHI AND ORS.          ...Respondents

Through: Mr. Mohinder J.S. Rupal, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Two similar writ petitions were filed. One was W.P.(C)

No.180/2013 and the other was the present writ petition being W.P.(C)

No.858/2013. Leaving aside slight difference in language, essentially the

averments in both the writ petitions were same. Reliefs also claimed in

both the writ petitions were same viz of challenge to the advertisement

dated 25.8.2012 whereby recruitments were being made by the respondent

no.2/college to various posts including group „D‟ posts.

2. Both the writ petitions were heard together and the main writ

petition of the individual Sh. Kedar Nath being W.P.(C) No.180/2013 was

dismissed in terms of the following order on 15.5.2013:-

"1. On 11.1.2013, the following order was passed:- "1. The grievance of the petitioner seems to be that as per the recruitment rules the posts of Semi Professional Assistant have to be filled in by promotion to the extent of 50% and direct recruitment to the extent of 50%. The petitioner has however not stated in the writ petition what are the total number of sanctioned posts for Semi Professional Assistant, although, number of vacancies are two for which advertisement has been issued in August, 2012. It is therefore necessary to know the total sanctioned posts of Semi Professional Assistant and to which the petitioner aspires to be promoted, because if there are already posts of Semi Professional Assistant which have been occupied by promotion to the extent of 50%, the writ petition may not lie.

2. Petitioner to file a specific affidavit giving the number of sanctioned posts in the respondent No.2/College for Semi Professional Assistant.

3. Counsel appearing for the respondent No.1 will also file the necessary affidavit with respect to such sanctioned posts. Both the parties to file their respective affidavits within a period of 4 weeks from today.

4. Counsel for the respondent No.1 will also verify as to whether the recruitment process pursuant to the advertisement of August, 2012 is already complete or not.

5. List on 15th May, 2013."

2. Petitioner has not filed the necessary affidavit.

3. It is therefore clear that there would be no post for Semi Professional Assistant in the respondent no.2, and which would be vacant, and to which appointment can be claimed by the petitioner by promotion.

4. In view of the above, there is no merit in the petition, which is accordingly dismissed, leaving the parties to bear their own costs."

3. Petitioner in this case is an association of SC and ST

employees and effectively what was argued was for similar rights as

claimed by the petitioner/Sh. Kedar Nath in W.P.(C) No.180/2013.

Therefore, once W.P.(C) No.180/2013 of Sh. Kedar Nath was dismissed by

a speaking order dated 15.5.2013, this writ petition was also dismissed by

referring to the order dated 15.5.2013 in W.P.(C) No.180/2013. Petitioner

carried the order passed in this case in appeal and argued before the

Division Bench that this Court did not consider various aspects as

mentioned in the writ petition and therefore dismissal by a single line order

by reference to the order in the case of Sh. Kedar Nath was not correct.

Division Bench has accordingly remanded the matter for decision by

giving reasons.

4. At the outset, I must state that today an application being

C.M. No.16427/2013 is listed and by which fresh grounds are sought to be

added. However, if I allow such an application it would amount to over

reaching the Court because writ petition was argued and disposed of in

terms of the existing averments as on 15.5.2013. Before the Division

Bench also the remand was prayed for in terms of the existing pleadings in

the writ petition. Therefore, totally new grounds cannot now be urged by

filing a fresh application inasmuch as the remand order has to be limited to

the existent pleadings of the petitioner.

5. Before me, on behalf of the petitioner the following grounds

are urged in support of the writ petition.

6(i) The posts of Semi Professional Assistants actually should be

filled 50% by promotion by an SC candidate in view of the roster point

system maintained by the respondent no.1/University.

(ii) When we however see the writ petition there are at best some

stray averments of claim made for appointments to the posts of Semi

Professional Assistants on account of the said posts having to be SC posts

because of the roster system. Therefore, no case can be argued for which

there does not exist sufficient pleading in the writ petition. The only

averments as argued before me as the post of Semi Professional Assistants

are those contained in para 10 of the writ petition and which reads as

under:-

"10. That so far as the two posts advertised in the impugned advertisement are concerned as per the recruitment rules 50% of the post should be filled up by promotion and 50% by the recruitment by direct recruitment and some of the candidates who are working in the college is having necessary qualification and is eligible and

entitle for promotion to the semi professional assistant, therefore the advertisement for the post is illegal and is in violation of the recruitment rules as prescribed and applied by the recruitment authorities and policy of the Govt. of India."

This aspect of para 10 has been specifically and directly considered in the

connected matter of Sh. Kedar Nath in W.P.(C) No.180/2013 which was

dismissed on 15.5.2013. Accordingly, the argument urged of appointment

of SC candidates is accordingly rejected both on account of lack of

requisite pleadings and they not being substantiated as also that para 10

issue has been considered and rejected in terms of the order dated

15.5.2013 in W.P.(C) No.180/2013.

7(i). The second argument urged before me is that the sanction for

the posts which were advertised on 25.8.2012 came later on 3.10.2012 and

therefore the earlier advertisement in the recruitment process must be

quashed.

(ii) Once again this was an argument which was raised in the

connected W.P.(C) No.180/2013 however that argument was not pressed

in view of the fact that same counsel had appeared in both the writ

petitions, and this point which is argued before me was not argued by the

counsel who appeared on 15.5.2013 for the present petitioner as the

argument had no substance. Be that as it may, I may state that this

argument was really a frivolous argument because may be sanction for the

posts came later and advertisement was issued earlier, however, I fail to

understand how the same can make any difference to the validity of the

recruitment process inasmuch as recruitment process was completed only

after undoubtedly getting sanction of the posts in terms of the letter of the

University dated 3.10.2012. Academic issues have no bearing for decision

in a court of law. Really, an academic issue is sought to be argued that

advertisement was firstly issued and thereafter sanction came and therefore

on this ground advertisement must be quashed. I accordingly reject this

academic argument inasmuch as once sanction for the posts has come, and

the posts have been filled up as per the sanction, there cannot be challenge

to the recruitment process in terms of the advertisement dated 25.8.2012

simply because advertisement is of a date earlier than letter of the sanction

of posts.

8(i). The third point which is argued before me is that whereas

sanction was with respect to only two posts of SC candidates in the

advertisement, three posts of SC candidates are sought to be filled in.

(ii) When the counsel for the petitioner was put a query that after

all how it is prejudicial to an SC/ST association if there are more posts

which are advertised, counsel for the petitioner agrees that may be it is a

benefit, however, it is argued that since there is a technical flaw in the

advertisement inasmuch as in the advertisement there are three posts but

only two posts were sanctioned, for that reason, the impugned

advertisement must be quashed. Clearly therefore once again this

argument urged on behalf of the petitioner is a totally frivolous one

inasmuch as a legal cause of action arises because of a prejudice and not

because of a benefit which is given in addition to an existent legal right.

9(i) The next argument which is urged before me is that the

advertisement in question ought to have mentioned the age relaxation for

the SC/ST candidates, and which was not done and hence the

advertisement is illegal.

(ii) When asked to state the ground of the writ petition in which

this issue is pleaded, reference was made to Ground (B) of the writ

petition. When we however read Ground (B) all that is pleaded is that no

qualification is prescribed for the SC/ST and OBC candidates. This

ground therefore urged has no correlation to what is argued before this

Court with respect to age relaxation of SC/ST candidates. Therefore, there

is no ground or any pleading in the writ petition for age relaxation so far as

SC/ST candidates are concerned. May be in law SC/ST candidates are

entitled to age relaxation however for that purpose specific, direct and

requisite pleadings have to be made, they are to be substantiated,

arguments have to be raised on that basis and only thereafter such an issue

would be decided.

10. I must mention that none of the issues which are argued

before me today on behalf of the petitioner, were at all urged while this

writ petition was disposed of on 15.5.2013, and as already stated above

both the writ petitions were argued by the same counsel. Once grounds are

not pressed there cannot be an entitlement to get them decided because in

every writ petition many many facts are pleaded and grounds urged, but,

courts only decide those issues which are argued at the time of the hearing

of the case.

11(i). The final issue which is urged before me is that advertisement

must fail because group „D‟ employees have been called as such in the

advertisement instead of being referred to as multi tasking staff.

(ii) Once again when asked to show that where such an averment

is made in the writ petition that there is incorrect description of designation

with respect to persons sought to be employed through the impugned

advertisement, nothing could be pointed out as regards such a pleading.

Ground (E) of the writ petition is pointed out in support of this argument

and the said ground does not at all deal with the argument of mis-

description of calling the employees as group „D‟ employees and not as

multi tasking staff employees. Ground (E) is with respect to non-

mentioning in the advertisement of how many seats are falling in the

reserved category and non application of roster system of the Delhi

University while making recruitment. I may note that aspect of roster

system which is mentioned in this ground was relevant so far as another

earlier argument urged on behalf of the petitioner is concerned, however,

except making this general averment in the writ petition not a single

document was filed and no other details have been given as to how the

roster point system for SC employees does not stand complied with. I

may, so far as the last argument is concerned also mention that how the

petitioner association can be prejudiced merely because an advertisement

does not give description of group „D‟ employees as multi tasking staff is

not shown. Of course, at the time of appointment if such persons were

given a wrong description, such persons who are really affected, could

have come to the Courts by saying that they should be given correct

description as per rules, however, I fail to understand as to how if in the

advertisement it is written only group „D‟ employees and not multi tasking

staff, and for which aspect in any case there is no pleading in the writ

petition, how the petitioner association is in any manner prejudiced.

12. The aforesaid narration shows that petitioner has been less

than fair. Obviously, it must not have been argued before the Division

Bench that earlier counsel did not argue all the points which have been

argued before me today. Surely, in a writ petition which contains dozen of

grounds they do not have to be pronounced upon by the Court unless

argued.

13. In view of the above, the writ petition is dismissed with costs

of Rs.50,000/-. Costs can be recovered by the respondent no.1 in

accordance with law from the petitioner.

DECEMBER 06 , 2013                             VALMIKI J. MEHTA, J.
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