Narender Yadav vs Union Of India And Anr.
2013 Latest Caselaw 662 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of decision: 12.02.2013
+                     W.P.(C) 2574/2000, C.M. APPL. 10054/2012
       NARENDER YADAV                                ..... Petitioner
                   Through :               Sh.   Sushil Dutt Salwan,
                   Advocate.

                              versus

       UNION OF INDIA AND ANR.             ..... Respondents

Through : Ms. Raman Oberoi, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. In these proceedings, under Article 226 of the Constitution, the petitioner claims for a direction to quash a letter dated 19 th April, 2000, by which his candidature to the post of Assistant Commandant was rejected. He claims for directions for production of the relevant official records, and also for directions to the respondents to issue an appointment letter to the petitioner to the said post of Asst. Commandant.

2. The brief facts are that sometime in January-February, 1999, the respondents advertised for direct recruitment to the post of Assistant Commandant, in the Border Security Force (BSF). The petitioner applied for that post. On July 11, 1999 a written

W.P.(C) 2574/2000, C.M. APPL. 10054/2012 Page 1 examination for the post of Assistant Commandant in Central Po1ice Organizations was held at New Delhi. Subsequently, on October 26, 1999, the petitioner was told that he was successful in the written examination. The respondents, vide letter dated 5th November, 1999, asked the petitioner to appear for physical efficiency test scheduled for 9th December, 1999. It is stated that during that physical examination, the petitioner's physical measurements were incorrectly recorded; as a result of which, he represented to the authorities. His representations went unheeded. Consequently, he approached this Court, by filing a writ petition (WP 7543/99) which was disposed of by an order dated 20th January, 2000. The Court's order stated as follows:

"...the case of the petitioner was rejected after medical examination on the ground that the petitioner did not meet the needed physical standards as laid down in the advertisement inasmuch as the normal chest of the petitioner without expansion should have been 81 cms and with expansion 86 cms. In the medical examination conducted by the respondent the measurement of the petitioners chest without expansion was 79 cms and with expansion 84 cms. Petitioner has filed this writ petition disputing the aforesaid medical examination and contends that the normal chest of the petitioner without expansion is 86.5 cms with expansion 92 cms. Although, normally, one cannot dispute the efficiency of the medical examination conducted by the respondent, keeping in view the fact that there is a vast difference in the claim made by the petitioner and the result of the medical examination conducted by the respondent, respondents have agreed for conducting the medical examination of the petitioner again.

W.P.(C) 2574/2000, C.M. APPL. 10054/2012 Page 2 The necessary medical examination of the petitioner be conducted by the end of February, 2000. It is made clear that this order is passed in the peculiar circumstances of this case and is to confirm precedence. The petitioner undertakes that he would be bound by the court to agree to the report of the medical examination conducted by the respondent. However, in case candidature of the petitioner is rejected on any other ground it would be open to the petitioner to agitate the matter on grounds of law."

3. After the above order, the respondents conducted the petitioner's medical test on 22-02-2000; his measurements were found to be in accordance with the standards. He apparently qualified in the physical efficiency test later, and was called for interview, held on 23- 02-2000. Out of 2000 candidate, 125 candidates were called for interview. The petitioner alleges that he was interviewed by one Shri Rana, DIG of the Border Security Force. Later, in April, 2000, he was informed that he had secured a total of 225 marks out of 500 in the entire selection process and had not been successful. He alleges that the same Mr. Rana had disqualified him in the first instance, on the ground of his not measuring up to the prescribed physical standards and that his participation in the interview prejudiced him (the petitioner). It is alleged that the said Shri Rana was biased, and harboured a grudge because the petitioner had approached the court on the earlier occasion and his complaint was ultimately vindicated, because he was found to be qualified in the medical test and physical efficiency test. This was resented by the said Shri Rana who made sure not to properly evaluate his performance during the interview.

W.P.(C) 2574/2000, C.M. APPL. 10054/2012 Page 3

4. It is urged that the petitioner had performed extremely well in the written examination, as well as the physical efficiency test. His alleged poor performance could not be explained, in the circumstances, except by the respondents' mala fides and the bias of Shri Rana. Learned counsel submits that the said Shri Rana's biased approach was evident during the interview when he asked pointedly whether he (the petitioner) had approached the court earlier against his non-appointment, in a writ petition. That question was entirely irrelevant, and showed blatant mala fides.

5. The respondents argue, in their counter affidavit, that the allegations of mala fides and bias are baseless. It is averred that the interview board consisted of only one DIG level officer; the president of the board was the Additional Director General; it had three members of Inspector General rank and a representative of the Central Government. Furthermore, it is denied that questions of the kind alleged were put to the petitioner during the interview. The respondents further allege that the petitioner secured 170 marks in the written exam and 55 marks during the interview. He had applied as an OBC candidate, for which the last cut off marks were 241. His overall aggregate was 225 and he could not, therefore, be selected.

6. The above discussion reveals that the petitioner's complaint about unjustified rejection of his candidature and subsequent non- selection is premised on the allegation that one Shri Rana conducted his interview and was inimical towards him. The first occasion for the petitioner's approaching the court, on the ground of wrong physical

W.P.(C) 2574/2000, C.M. APPL. 10054/2012 Page 4 measurement, and participation by Shri Rana during that time, is cited as the reason for his bias and mala fides.

7. What strikes this Court is the fact that despite the petitioner's having approached this court, and made allegations of Shri Rana's alleged mala fides, that official has not been made a party. It is now well established that judicial review of executive or legislative action is limited to examining whether the impugned decision is tainted; the Court's role is confined to seeing if it is illegal, the result of non- application of mind, irrational (in the sense that no reasonable man would have arrived at such decision) or the result of mala fides. The Court does not adjudicate or weigh the merits of a policy decision, unless the executive decision is one which no reasonable man can subscribe to. Whenever allegations of mala fides, on account of some individual officer's bias or other personal grounds are sought to be made out, it is imperative that the said individual has to be made a party to the proceeding, and notice issued to him. In the present case, the petitioner has not impleaded the said Shri Rana. This omission, in the Court's opinion, constitutes a fatal infirmity to the maintainability of these proceedings.

8. Another aspect which is relevant while considering the legality of the petitioner's non-selection is the circumstance that Mr. Rana was not the only member of the interview board; it consisted of five other officials, most of who were higher in rank than him. Under these circumstances, even the allegation of bias is extremely tenuous and has not been established.

W.P.(C) 2574/2000, C.M. APPL. 10054/2012 Page 5

9. In view of the above discussion, it is held that the petitioner's complaint of bias and mala fides, is meritless. The reliefs claimed by him cannot, therefore, be granted. The writ petition and pending application consequently fail and are dismissed.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE) FEBRUARY 12, 2013

W.P.(C) 2574/2000, C.M. APPL. 10054/2012 Page 6