Shri Sumit Bhattacharjee vs Union Of India & Ors.
2013 Latest Caselaw 2653 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P.(C) No. 2663/1998 & C.M. No.11443/1998

%                                                                  May 21, 2013

SHRI SUMIT BHATTACHARJEE                                           ......Petitioner
                  Through:                   Mr. B. Mahapatra, Advocate.
                            VERSUS


UNION OF INDIA & ORS.                                           ..... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner Sh. Sumit Bhattacharjee against

his employer/respondent no.2/National Book Trust of India seeking the relief of

promotion to the post of Assistant Director (Production) w.e.f April,1996.

2. The facts of the case are that the petitioner was appointed as Production

Assistant on 1.7.1983 with the respondent no.2. The post of Assistant Director

(Production), and which is a promotion post after the post of Production

Assistant, fell vacant in April, 1996. Petitioner contends that as on this date if

DPC was held he would have been the only candidate, and therefore, he

questions the interview and the selection process which was conducted

subsequently on 19.2.1997. Petitioner also contends that if there were any

adverse entries in the ACRs for the years 1995-1996, these ACRs stand

expunged by the memorandum dated 7.9.1996. Petitioner also claims that

respondent no.2 was unjustified in holding of interviews for the post of Assistant

Director (Production) because the relevant recruitment rules did not provide for

interviews. It is also contended that respondent no.3 could not be appointed to

the post of Assistant Director (Production) because he was not a graduate.

3. Respondent no.2 has filed its counter-affidavit and stated that petitioner

after appearing in the interview, and having been declared unsuccessful as

compared to respondent no.3, thereafter, now cannot turn around and question

the selection process on the ground that DPC should have been held for the post

falling vacant only in April, 1996. It is also argued that DPC duly considered

both the petitioner and the respondent no.3 for the post of Assistant Director

(Production) and found the petitioner not to be suitable and the respondent no.3

to be better, and therefore, granted promotion to the respondent no.3.

4. I may note that it is not disputed that only one post of Assistant Director

(Production) was available and therefore, only one of the candidates could be

appointed.

5. Firstly, in my opinion, the petitioner is not justified in arguing and

contending that the promotion to the post of Assistant Director (Production)

should be held immediately after April, 1996, and if it was held, petitioner

would have been appointed. This is because if that was the stand of the

petitioner then petitioner should not have participated in the selection process

and should not have appeared before the Selection Committee/DPC. Petitioner

having participated in the process is quite clearly estopped from challenging the

fact that DPC could not meet and he in fact ought to have been selected taking

the position as on April, 1996. Petitioner is therefore, estopped from

challenging the selection process conducted on 19.2.1997 when the respondent

no.3 was appointed and not the petitioner.

6. Reliance upon the judgment of the Supreme Court in the case of

Rajkumar and others, etc. Vs. Shakti Raj and others etc. AIR 1997 Supreme

Court 2110 by the petitioner is not correct because in the facts of the said case

the Supreme Court has said that principle of estoppel by conduct or

acquiescence has no application. However, reference to para 16 of the judgment

clearly shows that the Supreme Court relied upon its earlier judgment in the case

of Madan Lal v. State of J and K. (1955) 3 SCC 486 to hold that a candidate

having taken a chance to appear in an interview but who remained unsuccessful

cannot turn around and challenge either the constitution of the Selection Board

or the method of selection as being illegal because he is estopped in law in

questioning the correctness of the selection.

7. The second ground which was urged on behalf of the petitioner is that the

DPC of the respondent no.2 have wrongly relied upon the new rules of

appointment/promotion to the post of Assistant Director (Production) but should

have relied on the old rules which are filed as Annexure „H‟ (page 37 of the

paper book) which as per the petitioner does not require any interview process to

be conducted because there is automatic promotion on completing five years of

service. It is further argued that the respondent no.3 was not a proper candidate

because he did not have the requisite graduation degree. In order to appreciate

this contention, let us refer to the old recruitment rule which has been filed by

the petitioner as Annexure „H‟ to the writ petition at page 37, and which reads as

under:-

RECRUITMENT RULES FOR THE POST OF ASSISTANT DIRECTOR (PRODUCTION) 32

1. Classification Group „A‟

2. Scale of pay Rs.2200-75-2800-EB-100-4000

3. Age-limits for direct Below 35 years recruits

4. Educational and other Essential qualifications required a) Senior Secondary or equivalent with for direct recruits three year Diploma in Printing Technology from a recognized institute.

b) Seven years practical experience in production of books in a press/publishing house Desirable

a) A degree from a recognised university

b) Skill in typography and layout

5. Whether age-limits, Qualification of three -year Diploma in qualifications Printing Technology from a recognised prescribed for direct institute will apply recruits will apply in this case of promotion

6. Period of probation 2 years

7. Method of recruitment a) 50% by promotion by selection on the basis of service records and interview, failing which by direct recruitment

b) 50% by direct recruitment

8. In the case of Production Assistants with five years recruitment by regular service in the post in the Trust promotion/transfer, posts from which promotion/transfer will be made

9. DPC/Selection DPC/Selection Committee (as the case Committee may be) for Group „A‟ posts Note: The academic qualifications will not be applicable in the case of Production Assistants already in position"

8. I may note that the next document which is in continuation of Annexure

„H‟ is also Annexure „H‟ because Annexure „H‟ are collective documents. The

said document at page 37(i) reads as Recruitment Rules to the post of

Production Assistant and not Assistant Director (Production).

9. A reference to the Recruitment Rules as prevalent according to the

petitioner in April, 1996 shows as per serial no.9 that there has to be held a

DPC/Selection Committee for the Group-A post of Assistant Director

(Production). Therefore, petitioner is not justified in stating that no interview

should be conducted. Also, in my opinion, interview has to be conducted

because after all the five years service records of the candidates have to be

considered, and surely therefore, it cannot be said that DPC/Selection

Committee should not meet. Once the DPC/Selection Committee meets, it is

bound to consider the five years regular service ACRs of the persons, and which

included the petitioner and the respondent no.3. Therefore, in my opinion, the

petitioner is not justified in contending that promotion was automatic and there

was no need for DPC/Selection Committee.

10. I may at this stage state that petitioner did not have a fully satisfactory

ACR for the year 1995-1996 as contended by him, and which would have been

considered for appointment even for the post in April, 1996 or for the selection

process of February, 1997. Petitioner had adverse remarks in his ACR for the

year 1995-1996. Though part of the adverse remarks was removed, but some

parts of the adverse remarks remained. This is clear from the memorandum

dated 7.9.1996 of the respondent no.2 which is filed as Annexure „G‟ (page 34)

of the writ petition. The relevant portion showing that there continued to remain

some adverse remarks against the petitioner is as under:-

"......The following remarks would remain not only because Shri Bhattacharjee has not represented against these but also because these are a just and correct comment on his performance:

c) except for lack of concern for the timely payment of bills, Shri Bhattacharjee is a good officer and he attends to his work with sufficient care;

d) he needs to pay more attention to the selection of printers so that the quality of production improves and the time schedule is respected;

e) he should assess the capacity of his printers in the light of their limitations-

The following remark being a repetition of what has been stated before is, however expunged:

f) he is expected to be more reliable in handling time bound reprints against firm orders-................."

11. Surely, when there is only one post and more than one candidate, a

candidate who has better ACRs for the preceding five years can be considered to

be more suitable by the DPC/Selection Committee for promotion. The

petitioner cannot claim that his ACR for the year 1995-1996 was totally

blemishless in view of the remarks which have been reproduced above. In any

case, the DPC considered the ACRs of both the petitioner and the respondent

no.3 and found the respondent no.3 to be a more suitable candidate. I cannot

interfere with the selection process unless I had before me the ACRs of the

respondent no.3 for comparison. These ACRs are not on record and therefore, I

have no option but to accept the decision of the DPC/Selection Committee

which found respondent no.3 more suitable than the petitioner, especially

because ACRs of both these persons having been duly considered by the

DPC/Selection Committee.

12. The argument urged on behalf of the petitioner that respondent no.3 was

not qualified as he was not a graduate is an argument without merit for the

reason that as per the serial no.4 of the Recruitment Rules, reproduced above

Annexure „H‟ (page 37), shows that what was essential was only a senior

secondary or equivalent qualification and a degree from a University was only

desirable ie not an essential criteria. Therefore, the argument of the petitioner is

misconceived that respondent no.3 was not to be considered because he did not

have a degree from a recognized University.

13. Upshot of the above discussion is that petitioner participated in the

selection process. He appeared before the DPC/Selection Committee. The

DPC/Selection Committee found the respondent no.3 as a more suitable

candidate for the only post available after duly considering the ACRs of both the

petitioner and the respondent no.3. Petitioner is estopped from claiming that the

DPC/Selection Committee should not have been held and he should be

considered for the post on account of vacancy existing in April, 1996. It may be

stated that even if a vacancy existed in April, 1996, as in April 1996 the ACR of

1995-1996 would have been considered and ACR of 1995-1996 did not have

only favorable remarks but there were some adverse remarks in the ACR, and

therefore, being one of the ACRs to be considered for five years even as of

April, 1996, it is not necessary that petitioner would have got promotion to the

post of Assistant Director (Production) automatically in April, 1996.

14. Finally, I may state that the issue in the present case is only of the

promotion for a period of roughly of about six odd years inasmuch as counter-

affidavit filed by the respondent no.2 shows that petitioner was promoted to the

post of Assistant Director (Production) w.e.f 24.4.2002.

15. In view of the above, I do not find any merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

MAY 21, 2013                                        VALMIKI J. MEHTA, J.
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