Ajay Kumar vs Union Of India And Ors
2013 Latest Caselaw 241 Del

$~12
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      DECIDED ON: 16.01.2013
+            WP (C) 267/2013, CM APPL.555/2013

AJAY KUMAR                                           ..... Petitioner
                          Through: Mr. Anil Singal, Advocate.

              versus
UNION OF INDIA AND ORS.                     ..... Respondents
                     Through: Mr. Amrit Pal Singh, Advocate
                     for Resp-1,2 & 4.
                     Mr. Naresh Kaushik, Advocate for
                     UPSC.

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


MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
1.     The petitioner, in this proceeding under Article 226 of the
Constitution of India seeks directions for quashing of an Office
Memorandum dated 9.8.1995 (issued by the Central Government)
and the orders made by the respondents cancelling his appointment
to the post of Assistant Commandant in Indo Tibetan Border Police
(ITBP).
2.     The facts briefly are that the petitioner was selected for the
post of Assistant Commandant in ITBP and the appointment letter
in that regard was issued on 16.12.2009. He had to join his duties
by 13.1.2010. The time for joining duties was extended - at his


WP (C) 267/2013                                                Page 1
 request; the respondents directed that he should report for duties by
13.2.2010 by their letter dated 18.1.2010.           The petitioner,
thereafter, sought further extension of time by an application dated
16.2.2010 and requested that he be allowed to join the next batch
for training. It is asserted that this request was in accordance with
OM dated 28.8.1997 governing the employer organization. The
respondents extended the time and stated, by their letter dated
26.3.2010, that the petitioner had to join by 12.4.2010. Before that
date, on 8.4.2010, the petitioner yet again sought for further
extension - this time for a period of one year since his mother was
critically ill. His letter dated 8.4.2010 also enclosed copies of his
mother's medical papers. The respondents partly accepted this
request and extended the time - to join the duties - till 15.6.2010.
The petitioner was unable to join duties. In this background, on
1.7.2010, the respondents issued a letter/order intimating that his
candidature and consequently the offer of appointment stood
cancelled. The petitioner states that he fell ill and was hospitalized
on 17.7.2010 and after recovery from the illness, he applied on
15.9.2010, requesting that he should be allowed to join the duties.
By letter dated 18.10.2010, the respondents rejected the request.
The rejection order reads as follows: -
      "Sub: Appointment to the post of Assistant commandant
      (GD) in ITBP.

      With reference to your application dated 15.09.2010 on the
      above mentioned subject, it is informed that as per
      government's instructions maximum six months time from


WP (C) 267/2013                                                 Page 2
       the date of issue of the original offer of appointment can be
      granted to a candidate exceptionally. Accordingly, extension
      in joining time had already been allowed to you up to the
      maximum limit for joining duty in the ITBP which elapsed on
      15.6.2010. Under these circumstances this department is not
      in a position to reconsider you for appointment, as offer of
      appointment duly cancelled vide this Dt. General No.1316
      dated 1.7.2010 cannot be revived.


                                                 (T.K. Chakravarty)
                                Sr. Administrative Officer (Pers-I)"

3.    The petitioner repeatedly - and unavailingly, represented to
the respondents - for revival of his appointment offer. Ultimately,
on 8.2.2011, his request was finally rejected.            The said
letter/communication relied upon an OM dated 9.8.1995 and also
stated that there was no provision for reconsideration of his case
which had been rejected, and consequently led to the lapse of his
offer of appointment.    The petitioner had challenged the final
rejection of his request through the order dated 8.2.2011 in an
earlier proceedings in WP (C) 4208/2012. In those proceedings,
the respondents had relied upon the OM of 9.8.1995.             The
petitioner sought and was granted liberty by an order dated
26.7.2012 to withdraw that writ petition. He now challenges the
cancellation of his appointment as well as the legality of the OM of
9.8.1995. The said OM states as follows: -
                                  "New Delhi, the 9-8-1995
                    OFFICE MEMORANDUM

      Subject: Candidates recommended by the UPSC/SSC for

WP (C) 267/2013                                               Page 3
       appointment to Central Civil Services and the post- delay in
      joining revival of offer of appointment after their
      cancellation - determination of seniority.
                              .......

The undersigned is directed to say that according to DP & T O.M.No.9/23/71-Estt.(D) dated 6.6.78 (copy enclosed) an offer of appointment issued by different Ministries/Departments, should clearly indicate that the offer would lapse if the candidate did not join within the specified period which shall not exceed two or three months. If, however, within the period stipulated, a request is received from candidates for extension of time, it may be considered by the Ministries/Departments and if they are satisfied, an extension for a limited period may be granted but the total period granted including the extension during which the offer of appointment will be kept open, should not exceed a period of nine months.

2. The Staff Side of the Departmental Council (JCM) of DOP&T have demanded that direct recruits may be allowed a maximum of three months for joining instead of nine months provided for in the O.M. under reference so as to avoid delay in preparation and issue of select/seniority list. The matter has been examined in consultation with the UPSC and it has been decided to reduce from nine months to six months the maximum time upto which an offer of appointment can be kept to open. In other words, an offer of appointment should clearly specify the period (which shall not normally exceed one or two months) after which the offer would lapse automatically if the candidate did not join within the specified period. If however, within the specified period, a request is received from the candidate for extension of time, it may be considered by the Ministries/Departments but extension beyond three months should not be granted liberally and it may be granted only as an exception where facts and circumstances so warrant and in any case only upto a maximum of six months from the date

WP (C) 267/2013 Page 4 of issue of the original offer of a appointment. An offer of appointment would lapse automatically after the expiry of six months from the date of issue of the original offer of appointment.

3. Subject to the above modifications the other provisions contained in the OM dated 6.6.78 should be followed scrupulously."

4. As is evident from a plain reading of the impugned OM, it contains a reference to the previous set of instructions contained in the OM dated 6.6.1978, inter alia, which states as follows: -

"No.9/23/71-Estt.(D) Government of India

Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training

... New Delhi, dated the 6th June, 1978

Subject: Candidates recommended by the UPSC for appointment to Central Civil Services and the post - delay in joining - revival of offers of appointment after their cancellation - determination of seniority.

xxxx xxxx xxxx

...........It has come to the notice of the Government that in certain cases, the candidates recommended by them for appointment take long time to join and there have also been cases where offers of appointment take long time to join Departments after they had been cancelled and in spite of the long delay in joining the candidates were allowed the benefit of seniority on the basis of their initial selection. The question whether

WP (C) 267/2013 Page 5 in such cases it would not be desirable to depress the seniority of the candidates who are appointed on the result of the of the selections by interviews/examination was considered by the Government in consultation with the UPSC and it has been decided that the following procedure may be adopted now. This procedure will be applicable both in case of (a) selection through interview and (b) examinations.

(i) In the offers of appointment issued by different Ministries/Departments, it should be clearly indicated that the offer would lapse if the candidates did not join within a specified period not exceeding two or three months.

(ii) If, however, within the period stipulated, a request is received from the candidates for extension of time, if may be considered by the Ministries/Departments and if they are satisfied, an extension for a limited period may be granted but the total period granted including the extension during which the offer of appointment will be kept open, should not exceed a period of nine months. The candidates who join within the above period of nine months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without any depression of seniority.

(iii) If, even after the extension(s) if any granted by the Ministry/Departments, a candidate does not join within the stipulated time (which shall not exceed a period of nine months), the order of appointment should lapse.

(iv) An offer of appointment which has lapsed, should not ordinarily be revived later, except in exceptional circumstances and on grounds of

WP (C) 267/2013 Page 6 public interest. The Commission should in all cases be consulted before such offers are revived.

(v) In a case where after the lapsing of the offer, the offer is revived in consultation with the Union Public Service Commission as mentioned in sub-para (iv) above, the seniority of the candidates concerned within the prescribed period of none months; and if the candidate joins before the candidates of the next selection/examination join, he should be placed below all other of his batch. If however, the candidates joins after some or all the candidates of the next selection/examination have joined, he should be:

(a) In cases of selection through interview, placed at the bottom of all the candidates of the next batch.

(b) In the case of examination, allotted to the next years batch and placed at the bottom.

The Ministry of Finance are requested to bring the above instruction to the notice of all concerned.

Sd/-

(N. RANGARAJAN) Deputy Secy. To the Govt. of India"

5. It is argued on behalf of the petitioner that the overall effect of the two memoranda, as interpreted by the respondents, is to deny the appointment altogether without exception in the event the period of six months or more has elapsed from the date of the original appointment letter. Counsel relied upon certain subsequent communications issued by the Government of India, Ministry of

WP (C) 267/2013 Page 7 Home Affairs, notably dated 28.8.1997, and communications/orders of the BSF to say that there is nothing inviolate as regards the time period of six months. Counsel emphasized that the instructions allow certain circumstantial flexibility to the authorities to permit the candidate to report for duty even after six months. The only consequence in such cases is that the candidate would lose seniority and would have to join the subsequent batch for training. It was submitted that having successfully completed the rigors of selection process and having been determined suitable to hold the post, the respondents ought not to lightly undermine the petitioner's entitlement to the post, by narrowly construing time limits not specifically provided for in the concerned Recruitment Rules but generally prescribed in non- statutory guidelines.

6. Counsel for the respondents, appearing on advance notice, urged that there is nothing arbitrary in adopting uniform and non- discriminatory standard in mandating that selected candidates who are offered appointment should report for duty within a specified period and also prescribing outer time limits for the appointment authorities to extend the time for such reporting. It was contended that selection of suitable candidates is often an ongoing process and that if a successful candidate is allowed an indefinite length of time to report for duties, the timeline for his training would get disturbed and even the management of the cadre for determination of seniority and ranking would become unwieldy.

7. Counsel argued that adopting a non-discriminatory approach

WP (C) 267/2013 Page 8 and fixation of a reasonable time period of not more than six months for each candidate to report for duty would curtail the wide discretionary power which the appointing authorities would otherwise possess and exercise in an unguided manner. On the facts, learned counsel argued that the petitioner has approached the Court belatedly. Counsel highlighted the fact that even on the earlier occasion, the petitioner was well aware that his candidature stood rejected/cancelled in July, 2010 but approached the Court with his grievance only in the year 2012.

8. At the heart of the controversy in the present case is whether the respondents' action in telling the petitioner that his offer of appointment stood cancelled/withdrawn after acceding to his request for extension of time for reporting for duties on three separate occasions is arbitrary and whether the guidelines invoked by them are unjustified and discriminatory.

9. The OM of 6.6.1978 stipulates a uniform rule that the total period granted, including extension during which an offer of appointment would be kept open, should not exceed nine months. That outer limit was amended as it were by paragraph-2 of the OM dated 9.8.1995. Clause (iii) of the 1978 Memorandum clearly states that if after extension granted by the concerned appointing authority, a candidate concerned does not join within the stipulated time, the order of appointment should lapse. In the present case, the offer of appointment clearly lapsed on 15.6.2010, i.e., the last extended date given to the petitioner to report for duty. This was also communicated to him by letter dated 1.7.2010. This Court

WP (C) 267/2013 Page 9 does not discern any arbitrariness in the respondents' approach in applying OM dated 6.6.1978 as amended by the OM dated 9.8.1995.

10. As far as the question of legality of the Office Memorandum dated 9.8.1995 goes, the respondents' arguments, in the opinion of the court, are merited and substantial. It goes without saying that every offer of appointment should be finite in point of time, more so, in case of a public appointment. The recruiting agency and the competent authority are duty bound to follow transparent selection processes consistent with the dictates of Article 14 of the Constitution of India which mean that vacancies for various posts should be advertised, the last date for entertaining applications clearly notified and the written test or other mode adopted for selection and notified well in advance. Once this stage is over, the result - in the form of a select list - is again duly notified to the concerned candidates or publically. This is followed up by an offer of appointment to all successful candidates. The need to indicate a time within which or a date by which the candidate should report for duty needs to be hardly emphasized. This is because if a given candidate applies for more than one post, either in the same recruitment process or in a different one, and is selected, he gets a choice for opting for one of them. Often candidates - who might be successful later in a recruitment process - lose interest on account of a better offer elsewhere or upon their having obtained employment before the result is notified. In other words, the time for reporting signifies both, the candidate's willingness to join duty

WP (C) 267/2013 Page 10 and at the same time complete the acceptance of the offer of appointment from his end resulting in a contract of service. If this part were to be open ended, recruiting agencies would be groping in the dark as to the total number of candidates who finally elect to join duties. This will lead to anomalous and chaotic results such as inability to advertise future vacancies for the succeeding recruitment process. The OM of 6.6.1978 precisely sought to address and cater to these factors and initially mandated - by clause (iii) - an outer limit of nine months within which the offer of appointment could remain valid. The later OM of 9.8.1995 shortened that period to six months. The rigor of this norm is, to a certain extent, softened by clause (iv) of the OM of 1978 which states that in exceptional circumstances and on grounds of public interest, a lapsed offer of appointment can be revived. The OM of 28.8.1997, only states that candidates to the post of Assistant Commandant in BSF, CRPF and ITBP have to report to the concerned training academy on the specific date and that those who report for joining on or before the specific date as also those who report within four weeks of the specific date can be allowed to join the training whereas those who report after four weeks would be allowed to join with the next training batch. At the same time, this Memorandum carefully and explicitly states that in such cases - persons who report beyond four weeks -would not be entitled to seniority which would be depressed in terms of the provisions of Memorandum of 6.6.1978. The reference here is clearly to clause

(v) of the said Memorandum of 1978.

WP (C) 267/2013 Page 11

11. This Court sees neither arbitrariness nor discrimination in regard to the stipulation of a fixed period within which a successful candidate has to report for duties to his post. As discussed previously, if discretion is allowed to individual appointing authorities, the resultant chaos would throw out of gear the entire process of filling up of vacancies and jeopardize the management of a cadre. Besides, each department or agency in the government would be clueless about the number of vacancies it possesses and indeed the number of successful candidates who are waiting in line to join at a given point of time. It is quite likely that a large number of posts would remain unmanned and unfilled awaiting individual predilections of selected candidates who would join according to their convenience. To avoid such anomalous and possibly disastrous eventualities, a uniform approach was directed by the OM of 6.6.1978 as modified by the later Memorandum of 9.8.1995. The Memorandum relied upon by the petitioner of 28.8.1997, in no way, detracts from the instructions and contents of the two previous Office Memoranda. Both are clearly reasonable and non-discriminatory.

12. Although the above observations are dispositive of the present case, the Court also notices that the petitioner approached the respondents with a representation after his appointment lapsed, for the first time, on 15.9.2010; he appears to have made repeated representations and finally elicited their response in 2011. During the hearing, his counsel urged with certain vehemence that in terms of the OM dated 28.8.1997, the petitioner could still be

WP (C) 267/2013 Page 12 accommodated in a later training batch. This Court is of the opinion that such submission is based on the misreading of the OM dated 28.8.1997. It does not and cannot be read as permitting something which is contrary to the OM of 6.6.1978; the allusion to those who report after four weeks clearly means those who report within the overall period of six months or at worst those whose lapsed appointments are allowed to be revived on the ground of their falling within the "exceptional" category in "public interest". It was not - and perhaps justifiably so - the petitioner's case that his is an exceptional case; certainly, we see no elements of public interest, underlining his claim for being accommodated in a subsequent batch.

13. For the forgoing reasons, the Court is of the opinion that the petition lacks merit; it is accordingly dismissed with no order as to costs.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE)

JANUARY 16, 2013 /vks/

WP (C) 267/2013 Page 13